Petitioner challenged prosecution for possessing a SIM card in prison. Held that since prison authorities imposed punishment under Section 46 for the same offence, Section 42 does not apply to possession inside, and the prosecution violated double jeopardy. Petition allowed.
Criminal Original Petition allowed; STC No.1638 of 2021 stands quashed.
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.
Crl.O.P.No.4312 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.06.2022
CORAM
THE HONOURABLE MR. JUSTICE N. SATHISH KUMAR
Crl.O.P.No.4312 of 2022
Sriharan @ Murugan ... Petitioner
-Vs-
Prayer: Criminal Original petition filed under Section 482 of the Code of Criminal Procedure to call for the records in charge sheet in STC.No.1638 of 2021 on the file of the Judicial Magistrate Court No.1, Vellore and quash the same.
For Petitioner : Mr.M.Radhakrishnan for Mr.P.Pugalenthi
For Respondents : Mr.A.Gokulakrishnan Additional Public Prosecutor for R1
ORDER
This Criminal Original Petition has been filed to call for the records
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in charge sheet in STC.No.1638 of 2021 on the file of the Judicial Magistrate Court No.1, Vellore for the offence under Section 42 of Prison Act and quash the same.
2. The allegation in the Final Report is that the petitioner is a prisoner found in possession of a SIM Card and Cell phone inside the prison thereby he was prosecuted for the offence under Section 42 of Prisons Act, 1894.
3. The learned counsel for the petitioner submitted that for the possession of the SIM Card the petitioner had already been awarded punishment under Rule 302 of Tamil Nadu Prison Rules, 1983 by the prison authorities and therefore, there cannot be any further prosecution for the same offence. It is further contended that Section 42 of Prisons Act, 1894 will not be applicable to the prisoners and it will be applicable only to the outsiders who are found in possession of such materials. Hence the very prosecution itself is abuse of process of law and amounts
to double jeopardy and violation of Article 20(2) of the Constitution of India.
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4. The learned Additional Public Prosecutor submitted that there is
no dispute in the punishment imposed by the prison authorities.
5. Heard both sides.
6. It is relevant to refer the Prison offence. Section 45 of the
Prisons Act, 1894 deals with the Prison offence. Section 45 (12) of the Prisons Act, 1894 deals with r eceiving, possessing or transferring any prohibited article. Section 46 provided for punishment for such
offence. Section 46 of the Prisons Act, 1894 reads as follows:-
46. Punishment of such offences.—The Superintendent may examine any person touching any such offence, and determine thereupon, and punish such offence by—
(1) a formal warning. Explanation.—A formal warning shall mean a warning personally addressed to a prisoner by the Superintendent and recorded in the punishment-book and on the prisoner’s history-ticket;
form19 [for such period as may be prescribed by rules
made by the20 [State Government]];
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rigorous imprisonment;
(7) imposition of fetters of such pattern and weight, in such manner and for such period, as may be prescribed by rules made by the20 [State Government];
(8) separate confinement for any period not exceeding21 [three] months; Explanation.—Separate confinement means such confinement with or without labour as secludes a prisoner from communication with, but not from sight of, other prisoners, and allows him not less than one hour’s exercise per diem and to have his meals in association with one or more other prisoners;
such restriction of diet shall in case be applied to a
prisoner for more than ninety-six consecutive hours, and shall not be repeated except for a fresh offence nor until
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after an interval of one week; (10) cellular confinement for any period not exceeding fourteen days: Provided that after each period of cellular confinement an interval of not less duration than such period must elapse before the prisoner is again sentenced to cellular or solitary confinement; Explanation.—Cellular confinement means such confinement with or without labour as entirely secludes a prisoner from communication with, but not from sight of, other prisoners;
[(11) ] penal diet as defined in clause (9) combined with 6[cellular] confinement [(12) ] whipping, provided that the number of stripes shall not exceed thirty: Provided that nothing in this section shall render any female or civil prisoner liable to the imposition of any form of handcuffs or fetters, or to whipping.
7. Admittedly the petitioner was imposed with punishment of three months forfeiture of prison privilege inclusive of disallowing of interviews of his relative including his wife and blood relatives for the possession of Cell Phone. Therefore, once the Prison Authority had already imposed punishment, for the same offence, there cannot be any separate prosecution under Section 42 of Prisons Act. S ection 42 of The Prisons Act, 1894 reads as follows:-
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already punished under Section 46 of the Prisons Act, 1894, such view of
the matter, prosecution is not maintainable and final report stands quashed.
STC.No.1638 of 2021 on the file of the Judicial Magistrate No.1, Vellore
stands quashed.
28.06.2022
Index : Yes/No Internet : Yes/No Speaking/Non speaking order dpq
To
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N. SATHISH KUMAR,J.
dpq
Crl.O.P.No.4312 of 2022
28.06.2022
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3 issues framed by the court
whether prosecution for possession of a prohibited article under Section 42 of the Prisons Act is maintainable when the prisoner has already been punished under Section 46 for the same act
whether Section 42 of the Prisons Act, 1894 applies to a prisoner possessing prohibited articles inside prison or only to persons introducing such articles
whether further prosecution violates the principle of double jeopardy under Article 20(2) of the Constitution
4 provisions across 2 enactments
Sriharan @ Murugan
State Rep.by The Sub Inspector of Police, Bagayam Police Station, Vellore
Rajendran
N. SATHISH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
