Petitioner challenged cutting of remission and removal from post of overseer due to furlough overstay. Court held these are disciplinary/administrative actions, not prosecution, and do not attract double jeopardy or Section 300 Cr.P.C.
Rule is discharged. No relief granted to the petitioner regarding remission cut or removal from post.
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. 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 State |
CORAM : SMT. V.K. TAHILRAMANI &
MRS. MRIDULA BHATKAR, JJ. DATE : NOVEMBER 28, 2016.
ORAL JUDGMENT [PER SMT. V.K. TAHILRAMANI, J.] :
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.
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.
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.
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.
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.
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 :
The said Section 300 of the Code corresponds to
Section 403 of the Code of Criminal Procedure, 1903.
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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.
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.
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.
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.
party (V.K. Tahilramani, J.) took the same view in similar circumstances. These decisions are :- 1. Anil Lala Saundade Vs State of Maharashtra4 , 2. Niyaj Ahamad Abdul Jabbar Vs. State of Maharashtra5 . 3. Akash @
Vijay Kumar Khandekar Vs State of Maharashtra &
Anr.6 and 4. Buwaji Sahadeo Hazare Vs. State of
Maharashtra7
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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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.
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.
is in Kolhapur Central Prison, Kalamba.
[ MRS. MRIDULA BHATKAR, J ] [ SMT. V.K. TAHILRAMANI, J. ]
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3 issues framed by the court
Whether cutting of remission and removal from post of overseer constitutes double jeopardy under Article 20(2) of the Constitution.
Whether Section 300 of Cr.P.C. bars disciplinary actions taken for overstay against a prisoner who has not been tried by a competent court.
Whether discharging a prisoner from furlough and denying reappointment amount to punishment for the same offence.
Colour shows how this judgement treated each authority
Maqbool Hussain Vs State of BombayApplied¶47
1953 (Cri. L.J. 1432 : 2010 ALL SCR (O.C.C.) 294 · Who else cites this
Thomas Dana v. State of PunjabApplied¶87
AIR 1959 SC 375 · Who else cites this
Union of India and Ors. v. Sunil Kumar SarkarApplied¶95
(2001) 3 SCC 414 · Who else cites this
Anil Lala Saundade Vs State of MaharashtraRelied on¶113
2003 ALL MR (Cri) 433
Niyaj Ahamad Abdul Jabbar Vs. State of MaharashtraRelied on¶116
2011 ALL MR (Cri) 2509
Akash @ Vijay Kumar Khandekar Vs State of Maharashtra & Anr.Relied on¶124
2011 ALL MR (Cri) 3831
Buwaji Sahadeo Hazare Vs. State of MaharashtraRelied on¶125
Criminal Writ Petition No. 2477 of 2015
3 provisions across 3 enactments
Wilson Benjamin Castellino
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
