Ambadas Bhimrao Borse vs The State Of Maharashtra And Ors
2017 Latest Caselaw 6429 Bom

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RMA      
                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CRIMINAL APPELLATE JURISDICTION

                          CRIMINAL WRIT PETITION NO. 2625 OF 2017


            Ambadas Bhimrao Borse                                          .. Petitioner

                                 Versus
            The State of Maharashtra & Ors.                                .. Respondents

                                                    ...................
            Appearances
            Mrs. A.M. Z. Ansari               Advocate  for the Petitioner
            Mrs. G.P. Mulekar                 APP for the State
                                                    ...................


                              CORAM       : SMT. V.K. TAHILRAMANI &
                                              DR. SHALINI PHANSALKAR-JOSHI, JJ.

DATE : AUGUST 22, 2017.

JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :

1. Heard both sides.

2. The petitioner preferred an application for parole on

17.10.2016 on the ground of illness of his wife. The said

application was rejected on 10.1.2017. Being aggrieved

thereby, he preferred appeal. The appeal was dismissed by

order dated 29.4.2017, hence, this petition.

            jfoanz vkacsjdj                                                                     1 of 18





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3. The case of the petitioner is that his application for

parole was rejected mainly on the ground that in the year

2014 when he was released on parole, he did not report back

in time and he was arrested by police and brought back to

prison after 402 days. Thus, he overstayed his parole leave

by 402 days. Mrs. Ansari, learned counsel for the petitioner

pointed out that on account of this parole overstay of 402

days, C.R. No. 3014 of 2014 came to be registered against

the petitioner at Wadner Khakurdi Police Station, Malegaon

in which case he was convicted and sentenced to 3 months

imprisonment by Judgment & Order dated 30.4.2016. The

further case of the petitioner is that thereafter, he preferred

the present application for parole which came to be rejected

on the very same ground i.e overstay of 402 days. As far as

conviction and sentence under Section 224 of IPC is

concerned, no grievance is raised on behalf of the petitioner.

It appears that the petitioner has no grievance in this

respect and he has accepted the said decision but it is

contended that the petitioner cannot be punished again for

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the overstay of 402 days by rejecting his application for

parole.

4. Mrs. Ansari 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, punishment has been imposed on the petitioner

under Section 224 of IPC. In addition thereto, his application

for parole came to be rejected, hence, according to her, it is

clearly a case of double punishment i.e double jeopardy.

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, punishment was imposed

under Section 224 of IPC and in addition, his application for

parole was rejected. Thus, the petitioner has been doubly

punished which is in violation of Article 20(2) of the

Constitution of India.

jfoanz vkacsjdj                                                                3 of 18





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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 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

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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. The petitioner in this case cannot get any benefit,

because he has been prosecuted just once in the case under

Section 224 of IPC. Article 20(2) would become operative in

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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 twice before any Court of law or

Tribunal. There were no second proceedings 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.

jfoanz vkacsjdj                                                                   6 of 18





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8. The only condition precedent for application of the

principle of double jeopardy is that the person concerned has

been prosecuted and punished twice 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 twice 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.

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 where under, the

person can be tried again. In the present case, the petitioner

has been tried only once by a competent Court for his

overstay, 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.

jfoanz vkacsjdj                                                    7 of 18





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While dealing with Section 300 of Criminal Procedure Code, it

is necessary to take note of the exceptions provided under

the said sub-section 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

in the second trial; or

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(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 of rejecting his application for parole is

only a disciplinary action taken against the prisoner for which

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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 18





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Thus, in the present case, the rejection of parole 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 18





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13. In our view, applying the above principle in the present

case, two actions taken against the prisoner, one of

convicting and sentencing him under Section 224 of IPC and

the second of rejecting his application for parole 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 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

4 2003 ALL MR (Cri) 433

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Abdul Jabbar Vs. State of Maharashtra 5. 3. Akash @

Vijay Kumar Khandekar Vs State of Maharashtra &

Anr.6.

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. 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 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 5 2011 ALL MR (Cri) 2509 6 2011 ALL MR (Cri) 3831

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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.

16. Thereafter, after referring to Section 48-A of the

Prisons Act, 1894, it was sought to be contended that the

petitioner having been already convicted and punished

under Section 224 of IPC on account of the period for which

he had overstayed for 402 days, the petitioner could not be

again penalized by rejecting his application for parole as it

amounts to double jeopardy.

17. The provisions relating to entitlement or disentitlement

of parole leave do not relate to penal action on the part of

the authorities. Besides, punishment under Section 224 of

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IPC by the Court would not bar the act of the authority of

rejecting his application for parole on account of overstay

because the powers of Jail Authority are in the nature of

administrative authority.

18. The Prisons (Bombay Furlough & Parole) Rules

1959 make elaborate provisions regarding entitlement as

well as disentitlement of parole leave to the prisoner. Merely

because under certain circumstances the rule provides that a

prisoner would not be entitled to parole leave, that does not

amount to a penal provision so as to contend that the

implementation of such provision would amount to double

jeopardy. The provisions relating to entitlement or

disentitlement of parole leave do not relate to penal action

on the part of the authorities. The powers of the jail Authority

in this regard are in the nature of administrative authority.

19. It would also be relevant to point out that proviso to

Rule 26 of Chapter XXVII of the Maharashtra Prison Manual

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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

behaved prisoner shall not be deemed to be a punishment

for the purpose of Prison Rules. Thus, even if the application

for parole was rejected 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.

20. As far as the prayer relating to setting aside the order

of rejection of the application of parole of the petitioner and

grant of parole is concerned, it is seen that in the year 2014,

when the petitioner was granted parole, he did not report

back to the prison in time. It is seen that the petitioner was

required to be arrested by Police and brought back to

prison. Thus, there was overstay of 402 days. Thus, it is not

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a case of the petitioner surrendering on his own to prison.

The reason given by the petitioner for overstay in the year

2014 is that his mother was suffering from cancer. However,

it is seen that in 2014 when the petitioner was granted

parole, he had to surrender back within 30 days. The

petitioner, in such case, ought to have applied for extension

of parole but the petitioner did not do so. Moreover, had the

Police not arrested the petitioner and brought him back to

prison, the petitioner would not have reported back to the

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 not inclined to take a lenient view. The

main reason for rejecting the application of the petitioner for

parole was that he had absconded for 402 days, hence, it

was apprehended that if the petitioner is granted parole, he

may not report back to the prison and may abscond.

Looking to the conduct of the petitioner, it cannot be said

that this apprehension is without any basis. This conduct by

itself, in our opinion, is sufficient to reject the application for

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parole, hence, we need not go into any other grounds of

rejection. We would also like to state that in order to support

his contention that his wife is ailing, the petitioner has relied

on medical certificate issued by Shubhan Hospital. It is

pertinent to note that this medical certificate has no date on

the same. In any event, this medical certificate states that

the wife of the petitioner has already undergone surgery on

21.6.2017 and she is advised bed rest and medication for

one month. From the certificate, we do not see any good

reason to grant parole.

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.

22. In view of above, Rule is discharged.

[ DR. SHALINI PHANSALKAR-JOSHI, J ] [ SMT. V.K. TAHILRAMANI, J. ]

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