The Court held that removal from remission and post of overseer for parole overstay does not amount to double jeopardy. Disciplinary actions are distinct from prosecution and punishment under Article 20(2) and Section 300 CrPC.
Rule discharged; grievance on remission removal and post removal dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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RMA
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 2854 OF 2013 WITH CRIMINAL APPLICATION NO. 255 OF 2015
Pintu And Maruti Dattatray Harihar
.. Petitioner
Versus
The State of Maharashtra
.. Respondent
| Appearances | |
|---|---|
| Ms. Ameeta Kuttikrishnan | Advocate (appointed) for the Petitioner |
| Mrs. U.V. Kejriwal | APP for the State |
CORAM : SMT. V.K. TAHILRAMANI &
MRS. MRIDULA BHATKAR, JJ.
DATE : JULY 13, 2016.
ORAL ORDER [PER SMT. V.K. TAHILRAMANI, J.] :
3. The petitioner was released on parole on 23.2.2012 for
a period of 30 days. The petitioner had to surrender after 30
days, however, there was overstay of 266 days, hence, he
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was permanently removed from the remission system. This petition is preferred by the petitioner being aggrieved by the fact that he was permanently removed from the remission system, in addition, he was removed from a post of warden (overseer) and Rs. 5000/- given as a security deposit when he was released on parole was forfeited.
be returned back to the petitioner, hence, this grievance does not survive. Thus, only two grievances now remain that is the petitioner has been permanently removed from the remission system and second is that the petitioner was removed from the post of overseer.
He had to surrender after 30 days, however, he did not surrender in time and there was overstay of 266 days on the
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part of the petitioner. On account of this, the petitioner was removed permanently from the remission system. The learned APP has brought to our notice the Government Circular dated 22.5.2009. The said Circular at Annexure A deals with prisoners, who have overstayed parole. Anexure A Rule 9 of the said Circular states that if a prisoner overstays for a period of six months or more than six months, then the prisoner would be permanently removed from remission system. It is stated that in view of this Circular, as the petitioner had overstayed his parole for a period of more than six months, he was removed from the remission system.
was appointed as warden (overseer), however, he was removed from the post of overseer. As far as this aspect is concerned, as stated earlier, the petitioner overstayed for a period of 266 days. On account of the fact that the overstay
was for more than six months, the petitioner was
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permanently removed from the remission system. Chapter
XL of the Maharashtra Prison Manual deals with the convict
officers. Rule 2 of the said Chapter states that there shall be
two grades of convict officers :
(i) Convict Overseers
Rule 3 which states the eligibility for appointment as
convict officers states as under:-
"Rule 3(i). Subject to the provisions of sub-rule (ii) and Rule 4 and 5 and sub-rule (ii) of Rule 7, no prisoner shall be appointed as a convict officer unless
(a) he has been granted remission."
As stated earlier, the petitioner has been permanently
removed from the remission system. Thus, in view of rule 3
of Chapter XL, the petitioner cannot be appointed as overseer.
7. 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
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jeopardy under Article 20(2) of the Constitution of India. She
submitted that on account of overstay, punishment has been imposed on the petitioner of removing him from the remission system 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.
petitioner is that it is a case of double punishment in the sense that for the overstay, punishment was imposed of removing him permanently from the remission system, in addition, he was removed from the 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.
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9. 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.
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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, that 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 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.
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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.
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 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
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Court. While dealing with Section 300 of Criminal Procedure Code, it is necessary to take note of the exceptions provided under the sub-section also the explanation thereunder. Subsection (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.
Section 300 (1) of the Code, it must be established that :
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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).
The said Section 300 of the Code corresponds to Section 403 of the Code of Criminal Procedure, 1903.
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
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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.
Thus, in the present case, the imposition of penalty under
2 AIR 1959 SC 375
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the rules framed under the Prison Act would not amount to prosecution as contemplated under Article 20(2) of the Constitution.
15. Another judgment of the Supreme Court is in the case
of Union of India and Ors. v. Sunil Kumar Sarkar3 . 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
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case, two actions taken against the prisoner, one of removing him from the remission system and removing him from the post of 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 300 of Cr.P.C.
party (V.K. Tahilramani, J.) took the same view in similar
circumstances. The three decisions are :- 1. Anil Lala
Saundade Vs State of Maharashtra4 , 2. Niyaj Ahamad
Abdul Jabbar Vs. State of Maharashtra5 . 3. Akash @
4 2003 ALL MR (Cri) 433
5 2011 ALL MR (Cri) 2509
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Vijay Kumar Khandekar Vs State of Maharashtra &
Anr.6 and 4. Buwaji Sahadeo Hazare Vs The State of
Maharashtra7
18. 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
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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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 Sahadeo Hazare (supra), it was argued that it was a case of double jeopardy as remission was cut on account of overstay and in addition, parole and furlough applications were rejected. In view of the Supreme Court decisions and three decisions in the case of Anil Lala Saundade Vs State of Maharashtra (supra), Niyaj Ahamad Abdul Jabbar Vs. State of Maharashtra (supra) and Akash @ Vijay Kumar Khandekar Vs State of Maharashtra & Anr (supra), this Court found no merit in the said contention.
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a concession granted to him, hence, denial of remission would not amount to a punishment.
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 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.
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petition, hence, Rule is discharged.
the Criminal Application, the same is disposed of accordingly.
[ MRS. MRIDULA BHATKAR, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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3 issues framed by the court
Whether removal from remission and post of overseer due to parole overstay constitutes double jeopardy under Article 20(2) of the Constitution.
Whether the doctrine of double jeopardy applies when one action is remission removal and the other is disciplinary post removal for the same act.
Whether Section 300 of the Code of Criminal Procedure bars punishment for parole breach against a prisoner.
Colour shows how this judgement treated each authority
Maqbool Hussain Vs State of BombayExplained¶64
Maqbool Hussain Vs State of Bombay 1953 (Cri. L.J. 1432 : 2010 ALL SCR (O.C.C.) 294 · Who else cites this
Thomas Dana v. State of PunjabRelied on¶107
Thomas Dana v. State of Punjab 1959
Union of India and Ors. v. Sunil Kumar SarkarRelied on¶117
Union of India and Ors. v. Sunil Kumar Sarkar (2001) 3 SCC 414 · Who else cites this
Anil Lala Saundade Vs State of MaharashtraRelied on¶127
Anil Lala Saundade Vs State of Maharashtra 2003 ALL MR (Cri) 433
Niyaj Ahamad Abdul Jabbar Vs. State of MaharashtraRelied on¶128
Niyaj Ahamad Abdul Jabbar Vs. State of Maharashtra 2011 ALL MR (Cri) 2509
Akash @ Vijay Kumar Khandekar Vs State of Maharashtra & AnrRelied on¶129
Akash @ Vijay Kumar Khandekar Vs State of Maharashtra & Anr 2011 ALL MR (Cri) 3831
Buwaji Sahadeo Hazare Vs The State of MaharashtraRelied on¶135
Buwaji Sahadeo Hazare Vs The State of Maharashtra
2 provisions across 2 enactments
Pintu And Maruti Dattatray Harihar
The State of Maharashtra
V.K. Tahilramani
Mridula Bhatkar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
