Maqbool Hussain Vs. The State of
Bombay [1953] INSC 36 (17 April 1953)
BHAGWATI, NATWARLAL H.
SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K.
DAS, SUDHI RANJAN HASAN, GHULAM
CITATION: 1953 AIR 325 1953 SCR 730
CITATOR INFO :
RF 1954 SC 229 (12) F 1954 SC 375 (4) F 1956
SC 66 (17) E 1957 SC 877 (7) D 1958 SC 119 (4) E&R 1959 SC 375
(10,18,24,27,29) RF 1961 SC 29 (19,20,22) RF 1961 SC 663 (8) D 1961 SC 935
(5,7) RF 1962 SC 276 (12) R 1962 SC1246 (8) RF 1964 SC1140 (10) R 1967 SC1494
(13) R 1968 SC1313 (10) E 1970 SC 940 (11) F 1970 SC 962 (7) RF 1971 SC 44
(30,35) R 1977 SC1027 (31,34) RF 1984 SC1194 (25) D 1988 SC1106 (7)
ACT:
Constitution of India, 1950, Art.
20(2)-Fundamental rights"Autre fois acquit" When subsequent prosecution
barred -Confiscation of goods by Sea Customs Authorities--Whether bars
prosecution under Foreign Exchange Regulation ActPanishment by Jail
Superintendent under Jail Rules Whether bars prosecution under Penal Code--Sea
Customs Act (VIII of 1878), s. 167-Foreign Exchange Regulation Act (VII of
1947), s. 23 Punjab Communist Detenus Rules, Rule 41.
HEADNOTE:
The wording of Art. 20 of the Constitution
and the words used therein show that the proceedings therein contemplated are
proceedings of the nature of criminal proceedings before a court of law or a
judicial tribunal and "prosecution" in this context would mean an
initiation or starting of proceedings of a criminal nature before a court of
law or a judicial tribunal in accordance with the procedure prescribed in the
statute which creates the offence and regulates the procedure.
Where a person against whom proceedings had
been taken by the Sea Customs Authorities under s. 167 of the Sea Customs Act
and an order for confiscation of goods had been passed was subsequently
prosecuted before the Presidency Magistrate for an offence under s. 23 of the
Foreign Exchange Regulation Act in respect of the same act 731 Held, that the
proceeding before the Sea Customs Authorities was not a "prosecution"
and the order for confiscation was not a " punishments inflicted by a
Court or Judicial Tribunal within the meaning of Art. 20(2) of the Constitution
and the prosecution was not barred.
The detenus in a jail made a general assault
on jail officials and some of those who were removed to the cells resorted to
hunger strike; and they were separately-confined and letters and interviews
were stopped with regard to them by the Jail Superintendent. Some months after
the hunger strike the Jail Superintendent filed complaints against them before
a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having
committed a jail offence in resorting to hunger strike and for offences under
ss. 332 and 353 and 147 and 149 of the Indian Penal Code:
Held, (i) that the datenus were governed by
the Punjab Communist Detenus Rules and not the Prisons Act and the proceedings
taken by the Jail Superintendent against the detenus did not constitute a
prosecution and punishment within the meaning of Art. 20 (2) so as to prevent a
subsequent prosecution for offences under the Indian Penal Code;
(ii) the Jail Superintendent having taken
action under r. 41 (1) for the hunger strike and punished the detenus with
stoppage of letters etc. it was not open to him to make a complaint against
them again to the Magistrate for the same offence of having committed a jail
offence by resorting to hunger strike.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 81 of 1952. Appeal by special leave from the Judgment and Order,
dated 12th February, 1951, of the High Court of Judicature at Bombay in
Criminal Application No. 644 of 1950.
Petitions Nos. 170, 171 and 172, being
Petitions under Art.
32 of the Constitution, were also heard along
with Appeal No. 81 of 1952.
Ishwarlal C. Dalal for the appellant.
M. C. Setalvad, Attorney-General for India (Porus A. Mehta, with him) for the State of Bombay.
S. M. Sikri, Advocate-General of Punjab
(Jindra Lal, with him) for the State of Punjab.
Jagjit Singh, Petitioner in Petition No. 170
of 1951, in person. Other petitioners not represented.
1953. April 17. The Judgment of the Court was
delivered by Bhagwati J.
95 732 BHAGWATI J.-This appeal by special
leave from a judgment and order of the High Court of Judicature at Bombay
raises an important question as to the construction of article 20(2) of the
Constitution.
The appellant, a citizen of Bharat, arrived
at the Santa Cruz airport from Jeddah on the 6th November, 1949. On landing he did not declare that he had brought in gold with him but on search it
was found that he had brought 107.2 tolas of gold in contravention of the
notification of the Government of India dated the 25th August,1948. The Customs Authorities thereupon took action under section 167, clause (8), of the Sea
Customs Act VIII of 1878, and confiscated the gold by an order dated the 19th December, 1949. The owner of the gold was however given the option to pay in lieu
of such confiscation a fine of Rs. 12,000, which option was to be exercised
within four months of the date of the order. A copy of the order was sent on the 30th January, 1950, to the appellant. Nobody came forward to redeem the gold. On the 22nd March, 1950, a complaint was filed in the Court of the Chief Presidency
Magistrate, Bombay, against the appellant charging him with having committed an
offence under section 8 of the Foreign Exchange Regulation Act VII of 1947,
read with the notification dated the 25th August, 1948. The appellant thereupon on the 12th June, 1950, filed a petition in the High Court of Bombay under
article 228 of the Constitution contending that his prosecution in the Court of
the Chief Presidency Magistrate was in violation of the fundamental right
guaranteed to him under article 20(2) of the Constitution and praying that as
the case involved a substantial question of law as to the interpretation of the
Constitution, the determination of which was necessary for the disposal of the
case, the case may be withdrawn from the file of the Chief Presidency
Magistrate to the High Court and the High Court may either dispose of the case
themselves or determine the question of law and return it to the Chief
Presidency Magistrate's Court for disposal. A rule was issued by the High Court
on 733 the 26th June, 1950, which came on for hearing on the 9th August, 1950, before Bavdekar and Vyas JJ. The rule was made absolute and the High Court
directed that the proceedings pending against the appellant in the Court of the
Chief Presidency Magistrate be withdrawn and brought before the High Court
under article 228 of the Constitution.
The case was thereupon withdrawn and brought
before the High Court and was heard by the High Court on the 17th October, 1950. The learned Judges of the High Court, Chagla C.J. and Gajendragadkar J. were
of the opinion that the appellant could claim the benefit of article 20(2) only
if he was the owner of the gold which was confiscated and that before they
decided as to whether there had been a prosecution and a punishment within the
meaning of article 20(2) it was necessary that the Chief Presidency Magistrate
should determine the question of fact as to whether the appellant was the owner
of the gold which had been confiscated and in respect of which an option was
given to him as stated above.
They therefore sent the matter back to the
Chief Presidency Magistrate directing him to find a; to whether the appellant
was or was not the owner of the gold stating that they would deal with the
application after the finding was returned.
The Chief Presidency Magistrate recorded
evidence and on the 20th January, 1950, recorded the finding that the appellant
was the owner of the gold in question and returned the finding to the High
Court. Chagla C.J. and Gajendra gadkar J. heard the petition further on the 12th February, 1951.
They reversed the finding of the Chief
Presidency Magistrate, dismissed the application of the appellant and directed
that the case should go back to the Chief Presidency Magistrate for disposal
according to law. The appellant obtained on the 1st November, 1951, special leave to appeal against the judgment and order passed by the High Court.
The question that arises for our
determination in this appeal is whether by reason of the proceedings 734 taken
by the sea Customs Authorities the appellant could be said to have been prosecuted
and punished for the same offence with which he was charged in the Court of the
Chief Presidency Magistrate, Bombay. There is no doubt that the act which
constitutes art offence under the Sea Customs Act as also an offence under the
Foreign Exchange Regulation Act was one and the same, viz., importing the gold
in contravention of the notification of the Government of ,India dated the 25th
August, 1948. The appellant could be proceeded against under section 167(8) of
the Sea Customs Act as also under section 23 of the Foreign Exchange Regulation
Act in respect of the said act. Proceedings were in fact taken under section
167(8) of the Sea Customs Act which resulted in the confiscation of the gold.
Further proceedings were taken under section 23 of the Foreign Exchange
Regulation Act by way of filing the complaint aforesaid in the Court of the
Chief Presidency Magistrate' Bombay, and the plea which was taken by the
accused in bar of the prosecution in the Court of the Chief Presidency
Magistrate, was that he had already been prosecuted and punished for the same
offence and by virtue of the provisions of article 20(2) of the Constitution he
could not be prosecuted and punished, again.
The word offence has not been defined in the
Constitution. But article 367 provides that the General Clauses Act, 1897 (Act
X of 1897), shall apply for, the interpretation of the Constitution. Section
3(37) of the General Clauses Act defines an offence to mean any act or omission
made punishable by any law for the time being in force and there is no doubt
that both under the provisions of section 167 (8) of the Sea Customs Act and
section 23 of the Foreign Exchange Regulation Act the act of the appellant was
made punishable and constituted an offence.
In order however to attract the operation of
article 20(2) the appellant must have been prosecuted and punished for the same
offence when proceedings were taken by the Sea Customs Authorities. The 735 High
Court did not go into the question as to whether the appellant was prosecuted
when proceedings were taken before the Sea Customs Authorities. It considered
the question of punishment in the first instance and thought it necessary to
arrive at a' finding as to the ownership of the confiscated gold before it
could consider the application of the appellant. In the opinion of the High
Court the appellant could be said to have been punished only if it were
established that he was the owner of the confiscated gold.
If he was the owner, the confiscation was a
punishment, which would not be so if he was not the owner of the gold.
This question of the ownership of the gold
was not in our opinion material. The gold was found in the possession of the
appellant when he landed at the Santa Cruz airport. The appellant was detained
and searched by the Customs Authorities and the gold was seized from his
person.
Proceedings under section 167(8) were taken
by the Customs Authorities and after examining witnesses an order was passed on
the 19th December, 1949, confiscating the gold and giving an option to the
owner to pay a fine of Rs. 12,000 in lieu of such confiscation under section
183 of the Sea Customs Act. Copy of this order was forwarded to the appellant
and for all practical purposes the appellant was treated as the owner of the
confiscated gold. As a matter of fact when evidence was recorded before the
Chief Presidency Magistrate on remand the Assistant Collector of Customs gave
evidence that no one else had claimed the gold and had the appellant paid the
penalty and obtained the Reserve Bank permit and produced the detention slip he
would have been given the gold. Once the appellant was found in possession of
the confiscated gold the burden of proving that be was not the owner would fall
upon whosoever affirmed that he was not the owner. The complaint which was
filed in the Court of the Chief Presidency Magistrate, Bombay, also proceeded
on the footing that the appellant committed an offence in so far as he brought the
gold without the permit from 736 the Reserve Bank of India, that no permit was
ever applied for or granted to the appellant and that the appellant had been
given an opportunity of showing whether he had obtained such permit but that he
failed to produce the same. It appears therefore that the question of the
ownership could not assume as much importance is the High Court attached to it.
If the Court came to the conclusion that the appellant was prosecuted when
proceedings were taken by the Sea Customs Authorities there was not much scope
left for the argument that he was not punished by the confiscation of the gold
and the option given to him to pay a fine of Rs. 12,000 in lieu of such
confiscation. To be deprived of the right of possession of valuable goods may
well be regarded in certain circumstances as by itself a punishment. We have
therefore got to determine whether under the circumstances the appellant can be
said to have been prosecuted when proceedings were taken by the Sea Customs
Authorities.
The fundamental right which is guaranteed in
article 20(2) enunciates the principle of "autrefois convict" or
"double jeopardy". The roots of that principle are to be found in the
well established rule of the common law of England "that where a person
has been convicted of an offence by a court of competent jurisdiction the
conviction is a bar to all further criminal proceedings for the same
offence." (Per Charles J. in Beg. v. Miles (1). To the same effect is the
ancient maxim "Nemo bis debet punire pro uno delicto", that is to say
that no one ought to be twice punished for one offence or as it is sometimes
written "pro eadem causa", that is, for the same cause.
This is the principle on which the party
pursued has available to him the plea of autrefois convict" or "
autrefois acquit". " The plea of 'autrefois convict' or 'autrefois
acquit' avers that the defendant has been previously convicted or acquitted on
a charge for the same offence as that in respect of which he is arraigned......
The question for the jury (1) 24 Q.B.D. 423.
737 on the issue is whether the defendant has
previously been in jeopardy in respect of the charge on which he is arraigned,
for the rule of law is that a person must not be put in peril twice for the
same offence. The test is whether the former offence and the offence now
charged have the same ingredients in the sense that the facts constituting the
one are sufficient to justify a conviction of the other, not that the facts
relied on by the Crown are the same in the two trials. A plea of 'autrefois
acquit'is not proved unless it is shown that the verdict of acquittal of the
previous charge necessarily involves an acquittal of the latter." (Vide
Halsbury's Laws of England, Hailsham Edition, Vol. 9, pages 152 and 153, paragraph
212).
This principle found recognition in section
26 of the General Clauses Act, 1897,"where an act or omission constitutes
an offence under two or more enactments, then the offender shall be liable to
be prosecuted and punished under either or any of those enactments but shall
not be liable to be punished twice for the same offence," and also in
section 403 (1) of the Criminal Procedure Code, 1898," A person who has
been tried by a court of competent jurisdiction for an offence and convicted or
acquitted of such offence shall, while such conviction or acquittal remains in
force, not be liable to be tried again for the same offence, nor on the same
facts for any other offence for which a different charge from the one made
against him might have been made under section 236, or for which he might have
been convicted under section 237." The Fifth Amendment of the American
Constitution enunciated this principle in the manner following:"...............
nor shall any person be subject for the same offence to be twice put in
jeopardy of life or limb;
nor shall be compelled, in any criminal case,
to be witness against himself.................
738 Willis in his Constitutional Law, at page
528, observes that the phrase "jeopardy of life or limb" indicates
bat the immunity is restricted to crimes of the highest grade, and this is the
way Black stone states the rule : " Yet, by a gradual process of liberal
construction the courts have extended the scope of the clause to make it
applicable to all indictable offences, including
misdemeanours.".........." Under the United States rule, to be put in
jeopardy there must be a valid indictment or information duty presented to a
court of competent jurisdiction, there must be an arraignment and plea, and a
lawful jury must be impanelled and sworn. It is not necessary to have a
verdict. The protection is not against a second punishment but against the
peril in which he is placed by the jeopardy mentioned." These were the
materials which formed the background of the guarantee of fundamental right
given in article 20(2).
It incorporated within its scope the plea of
"autrefois convict" as known to the British jurisprudence or the plea
of double jeopardy as known to the American Constitution but circumscribed it
by providing that there should be not only 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.
The 'words "before a court of law or
judicial tribunal" are not to be found in article 90(2). But if regard be
had to the whole background indicated above it is clear that in order that the
protection of article 20(2) be invoked by a citizen there must have been a
prosecution and punishment in respect of the same offence before a court of law
or a tribunal required by law to decide the matters in controversy judicially
on evidence on oath which it must be authorised by law to administer and not
before a tribunal which entertains a departmental or ail administrative enquiry
even though set up by a statute but not required to proceed on legal evidence
given on oath. The very wording of article 20 and the words used therein:"
convicted commission of 739 the act charged as an offence", "be
subjected to a penalty ", " commission of the offence ", "
prosecuted and punished ", " accused of any offence ", would
indicate, that the proceedings therein contemplated are of the nature of criminal
proceedings before a court of law or a judicial tribunal and the prosecution in
this context would mean an initiation or starting of proceedings of a criminal
nature before a court of law or a judicial tribunal in accordance with the
procedure prescribed in the statute which creates the offence and regulates the
procedure.
The tests of a judicial tribunal were laid
down by this Court in Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank
Ltd., Delhi(1) in the following passage quoted with approval by Mahajan and
Mukherjea JJ. from Cooper v. Wilson'(2) at page 340:-"A true judicial
decision presupposes an existing dispute between two or more parties and then
involves four requisites :-(1) The presentation (not necessarily orally) of
their case by the parties to the dispute; (2) If the dispute between them is a
question of fact, the ascertaiment of the fact by means of evidence adduced by
the parties to the dispute and often with the assistance of argument by or on
behalf of the parties on the evidence; (3) If the dispute between them is a question
of law, the submission of legal argument by the parties; and (4) A decision
which disposes of the whole matter by a finding upon the facts in dispute and
application of the law of the land to the facts so found, including where
required a ruling upon any disputed question of law." The question whether
the Sea Customs Authorities when they entertained proceedings for confiscation
of the gold in question acted as a judicial tribunal has got to be determined
in accordance with the above tests.
The Sea Customs Act, 1878, 'was enacted to
consolidate and amend the law relating to the levy of sea customs duties.
The hierarchy of the officials are the (1)
[1950] S.C.R. 459, (2) [1937] 2 K.B. 309.
96 740 Customs Collector, who is the officer
of Customs for the time being in separate charge of a custom house, the Chief
Customs Officer who is the Chief Executive Officer of the Sea Customs for a
port and the Chief Customs Authority which is the Central Board of Revenue.
Sections 18 and 19 enact prohibitions. and restrictions on importation and
exportation of goods and section 19(a) provides for detention and confiscation
of goods whose importation is prohibited. After making various provisions for
the levy of sea customs duties, Chapter XVI enacts offences and penalties and
several offences mentioned in the first column of the schedule to section 167
are made punishable with penalties mentioned in the third column thereof. Item
8 relates to the offence committed by the importation of goods contrary to the
prohibition or restriction imposed in that behalf under sections 18 and 19 of
the Act and penalty prescribed for such an offence is:" Such goods shall
be liable to confiscation ; any person concerned in any such offence shall be
liable to a penalty not exceeding three. times the value of the goods, or not
exceeding one thousand rupees." Chapter XVII prescribes the procedure
relating to offences, appeals, etc. Powers of search are given to the officers
of customs but provision is made that a person about to be searched can,
require the officer to take him previous to search before the nearest
Magistrate or Customs Collector. Search warrant can only be issued by the
Magistrate and can be executed in the same way and has the same effect as a
search warrant issued under a law relating to criminal procedure. Powers are
also given to the officers of Customs to arrest persons reasonably suspected of
having committed an offence under the Act but the person arrested is to be
forthwith taken before the nearest Magistrate or Customs Collector. The
Magistrate is entitled either to commit such person to jail or order him to be
kept in custody of the police for such time as is necessary to enable the Magistrate
to communicate with the proper officers of Customs. No 741 such power is given
to the Customs Collector. Section 181(A) also provides for the detention of
packages containing certain publications imported into the States.
Section 182 provides that except in the case
of certain offences therein mentioned which involve proceedings before a
Magistrate confiscation, increased rate of duty or penalty can be adjudged by
the Customs Authorities therein mentioned and section 183 provides for option
to be given to the owner of the goods confiscated to pay in lieu of
confiscation such fine as the officer thinks fit, Section 186 provides that the
award of any confiscation, penalty or increased rate of duty under the Act by
an officer of Customs is not to prevent the infliction of any punishment to
which the person affected thereby is liable under any other law. An appeal is
provided under section 188 from a decision or order of the officer of Customs
to the Chief Customs Authority who is thereupon to make such further enquiry
and pass such order as he thinks fit confirming, altering or annulling the
decision or order appealed against. Section 191 provides for a revision by the
Central Government on the application of a person aggrieved by any decision or
order passed by an officer of Customs or the Chief Customs Authority from which
no appeal lies. Section 193 provides for the enforcement of the payment of
penalty or increased rate of duty as adjudged against any person by an officer
of Customs. If such officer is not able to realise the unpaid amount from other
goods in charge he can notify in writing to any Magistrate within the local
limits of whose jurisdiction such person may be, his name and residence and the
amount of penalty or increased rate of duty unrecovered and such Magistrate is
thereupon to proceed to enforce payment of the said amount in like manner as if
such penalty or increased rate had been a fine inflicted by himself.
It is clear on a perusal of the above
provisions that the powers of search, arrest and detention are given to the
Customs Authorities for the levy of sea customs duties and provision is made at
the same time for a 742 reference to the Magistrate in all cases where search
warrants are needed and detention of the arrested person is required. Certain
offences of a serious nature are to be tried only by Magistrates who are the
only authorities who can inflict punishments by way of imprisonment. Even
though the customs officers are invested with the power of adjudging
confiscation, increased rates of duty or penalty the highest penalty which can
be inflicted is Rs. 1,000.
Confiscation is no about one of the penalties
which the Customs Authorities can impose but that is more in the nature of
proceedings in rem than proceedings in personam, the object being to confiscate
the offending goods which have been dealt with contrary to the provisions of
the law and in respect of the confiscation also an option is given to the owner
of the goods to pay in lieu of confiscation such fine as the officer thinks
fit. All this is for the enforcement of the levy of and safeguarding the
recovery of the customs duties. There is no procedure prescribed to be followed
by the Customs Officer in the matter of such adjudication and the proceedings
before the Customs Officers are not assimilated in any manner whatever to
proceedings in courts of law according to the provisions of the Civil or the
Criminal procedure Code. The Customs Officers are not required to act
judicially on legal evidence tendered on oath and they are not authorised to
administer oath to any witness. The appeals, if any, lie before the Chief
Customs Authority which is the Central Board of Revenue and the power of
revision is given to the Central Government which certainly is not a judicial
authority. In the matter of the enforcement of the payment of penalty or
increased rate of duty also the Customs Officer can only proceed against other
goods of the party in the possession of the Customs Authorities. But if such
penalty orincreased rate of duty cannot be realised there from the only thing
which he, can do is to notify the matter to the appropriate Magistrate who is
the only person empowered to enforce payment as if such penalty or 743
increased rate of duty had been a fine inflicted by himself.
The process of recovery can be issued only by
the Magistrate and not by the Customs Authority. All these provisions go to
show that far from being authorities bound by any rules of evidence or
procedure established by law and invested with power to enforce their own
judgments or orders the Sea Customs Authorities are merely constituted
administrative machinery for the purpose of adjudging confiscation, increased
rates of duty and penalty prescribed in the Act.
The same view of the functions and powers of
Sea Customs Officers was expressed in& decision of the Bombay High Court to
which our attention was called. (See Mahadev Ganesh Jamsandekar v. The
Secretary of State for India in Council(1).
We are of the opinion that the Sea Customs
Authorities are not a judicial tribunal and the adjudging of confiscation,
increased rate of duty or penalty under the provisions of the Sea Customs Act
do not constitute a judgment or order of a court or judicial tribunal necessary
for the purpose of supporting a plea of double jeopardy.
It therefore follows that when the Customs
Authorities confiscated the gold in question neither the proceedings taken
before the Sea Customs Authorities constituted a prosecution of the appellant
nor did the order of confiscation constitute a punishment inflicted by a court
or judicial tribunal on the appellant. The appellant could not be said by
reason of these proceedings before the Sea Customs Authorities to have been "Prosecuted
and punished" for the same offence with which he was charged before the
Chief Presidency Magistrate, Bombay, in the complaint which was filed against
him under section 23 of the Foreign Exchange Regulation Act.
The result therefore is that the appeal fails
and must be dismissed.
Petitions Nos. 170, 171 and 172 of 1961.
(1) (1922) L.L.R. 46 Bom. 732.
By an order of this Court dated the 26th
November, 1952 these petitions were ordered to be heard by the Constitution
Beach along with Criminal Appeal No. 81 of 1952, as the same point as regards
"autrefois convict" or "double jeopardy" was also' involved
therein. Jagjit Singh, Vidya Rattan and Parma Nand, the three petitioners in
the respective petitions were detenus under the Preventive Detention Act, 1950,
detained in the Central Jail, Ferozepur, and governed by the Punjab Communist
Detenus Rules, 1950, framed by the Government of Punjab under section 4(a) of
the Act. On the 6th February, 1950, it is alleged, a general assault on jail
officials was made by the detenus including Jagjit Singh..
An alarm was rung and the warder guard after
some time overpowered the detenus who were responsible for the assault.
Thirteen jail officials and twelve detenus sustained injuries and the detenus
were all removed to cells. On the 7th February, 1950, the three detenus
petitioners resorted to a hunger strike which continued upto the 10th April,
1950. They were separately confined from and after the 6th February, 1950.
Their letters and interviews were stopped for two months with effect from the
7th February, 1950, and papers and books were stopped with effect from the 8th
February, 1950, for the duration of the hunger strike. The hunger strike
continued and they continued to be separately confined till the 10th April,
1960. It appears that more than 7-1/2 months after the hunger strike the Jail
Superintendent, Shri K. K. Matta, filed a complaint against Jagjit Singh in the
Court of Shri P. L. Sondhi, M.T.C.,Ferozepur, under rule 41(2) of the Punjab
Communist Detenus Rules charging him with having committed a jail offence in
resorting to hunger strike. He also filed a complaint before the same
Magistrate against Jagjit Singh for having committed offences under sections
332 and 353 and sections 147 and 149 of the Indian Penal Code. He further filed
against Vidya Rattan and Parma Nand complaints under rule 41 (2) of the Punjab
Communist Detenus Rules for having committed 745 a jail offence in resorting to
hunger strike. On the 16th February, 1951, the three detenu petitioners,, filed
before this Court petitions under article 32 of the Constitution asking for the
issue of a writ of prohibition not to proceed with the prosecutions of the
petitioners in the said cases on the ground that they had been prosecuted and
punished for the same offence already by the Jail Superintendent and therefore
they could not be prosecuted and punished for the same offence once again and
that the prosecutions which were launched against them in the, Court of Shri P.
L. Sondhi, M.I.C., Ferozepur, could not lie as being in contravention of the
fundamental right guaranteed under article 20(2) of the Constitution. Jagjit
Singh argued his own petition in person. Vidya Rattan had intimated to this
Court that he would be satisfied with the decision on Jagjit Singh's petition
and wanted his absence to be excused. Parma Nand did not appear at the hearing
even though notice of the hearing was served upon him.
It was urged by Jagjit Singh that the
proceedings which were adopted by the Jail Superintendent against the
petitioners amounted to their prosecution and punishment for the same offence
and that therefore the prosecution which was now launched against them was not
competent as it exposed them to double jeopardy and violated the fundamental
right guaranteed to them under article 20(2). It was on the other hand urged by
the Advocate-General of Punjab that the Jail Superintendent merely took
disciplinary action against the petitioners and the punishment if any which was
meted out to them was for breaches of discipline within the meaning of section
4(a) of the Act and the Punjab Communist Detenus Rules, 1950, framed thereunder,
that there was no prosecution and punishment of the petitioners within the
meaning of article 20(2) and that therefore the petitions were liable to be
dismissed.
Section 4 of the Preventive Detention Act,
1950 (Act No. IV of 1960), provides for power to regulate place and conditions
of detention, 746 "Every person in respect of whom a detention order has
been made shall be liable(a) to be detained in such place and under such
conditions, including conditions as to maintenance, discipline and punishment
for breaches of discipline, as the appropriate Government may, by general or
special order, specify The Punjab Communist Detenus Rules, 1950, were framed by
the Government of Punjab in exercise of the powers conferred by section 4 (a)
of the Act. Rules 39, 40 and 41 provide for offences and punishments. Rule 39
lays down certain rules of discipline and rule 40 provides that any detenu who
contravenes any of the provisions of rule 39 or refuses to obey any order
issued thereunder, or does any of the acts mentioned in the following portion
of the rule 40, viz. :(i) assaults, insults, threatens or obstructs any fellow
prisoner, any officer of the jail or any other Government servant, or any
person employed in or visiting the jail, or.......
(xii-a) goes on hunger-strike (other than a
token strike), or......
shall be deemed to have committed a jail off
once.
Rule 41 is important and bears particularly
on the question which we have to decide. It provides:" (1) Where upon such
enquiry as he thinks fit to make, the Superintendent is satisfied that a detenu
is guilty of a jail offence, he may award the detenu one or more of the
following punishments:(a) confinement in cells for a period not exceeding 14
days (d) cancellation or reduction, for a period not exceeding two months of
the privilege of writing and receiving letters or of receiving newspapers an
books, (e) cancellation or reduction, for a period not exceeding two months of
the privilege of having interviews 747 (2) If any detenu is guilty of a jail
offence which by reason of his having frequently committed such A offences or
otherwise is in the opinion of the Superintendent not adequately punishable by
him under the provisions of subrule (1), he may forward such detenu to the
Court of a Magistrate of the first class having jurisdiction, and such
Magistrate shall thereupon inquire into and try the charge so brought against
the detenu and upon conviction shall sentence him to imprisonment for a term
not exceeding one year: Provided that where the act constituting the offence'
constitutes an offence punishable under the Indian Penal Code with imprisonment
for a term exceeding one year, nothing in this rule shall preclude the detenu
from being tried and sentenced for such offence in accordance with the
provisions of the Indian Penal Code." It is clear from the above rules
that the Jail Superintendent is constituted the authority for determining
whether a detenu is guilty of a jail offence and for the award to such a detenu
of one or more of the punishments prescribed in rule 41. If this punishment is
considered to be adequate the Jail Superintendent is to award him the
appropriate punishment. No procedure is prescribed by the rules and the
Superintendent is not required to act only on evidence given on oath. He can
punish after such enquiry as he thinks fit to make. Thus he may not take any
evidence or make any judicial enquiry at all but may yet punish. If however the
detenu cannot in the opinion of the Jail Superintendent be adequately punished
by him by reason of his having frequently committed such offence or otherwise
the Jail Superintendent is empowered to forward such a detenu to the Court of a
Magistrate of the First Class having jurisdiction and the jail offence in that
case can be enquired into by the Magistrate who would try the charge brought
against the detenu, convict him and sentence him to imprisonment for a term not
exceeding one year. The proviso covers the cases where the offence is
Punishable with imprisonment for a term exceeding 97 748 one year under the
Indian Penal Code and nothing in rule 41 is to preclude the detenu from being
tried and sentenced for such offence in accordance with the provisions of the
Indian Penal Code.. The whole scheme of rule 41 is to constitute the Jail superintendent
only an administrative authority to maintain jail discipline and inflict
summary punishment on the detenus for breach of that discipline by committing a
jail offence. It is only when the Jail Superintendent considers that the
offence is not adequately punishable by him that he, can send the case to the
Magistrate. If he actually himself punishes he cannot, under this rule, refer
the case again to the Magistrate. A reference by him after punishment it will
be wholly unauthorised and without jurisdiction and the prosecution before the
Magistrate would be illegal and not in accordance with procedure established by
law.
It was contended that under sections 45, 46
and 52 of the Prisons Act (IX of 1894) the Jail Superintendent was constituted
an authority bound to act judicially for the purposes of enquiry into and trial
of the prisoners for similar offences and the detenus under the Punjab
Communist Detenus Rules, 1950, being put in the same category as civil
prisoners the proceedings before the Jail Superintendent for having committed
the Jail offences under rules 40 and 41 above amounted to a prosecution of the
petitioners before him as a judicial tribunal. It was on the other hand
contended by the Advocate-General of Punjab that the Punjab Communist Detenus
Rules, 1950, constituted a self-contained code regulating the place and
conditions of detention of these detenus, that the aforesaid sections of the Prisons
Act 1894, had. no application to their case and the proceedings which took
place before the Jail Superintendent in the present case were therefore not
judicial proceedings and there was no prosecution and punishment of the
petitioners within the meaning of article 20 (2). We accept the contention of
the Advocate General of Punjab. The petitioners were communist detenus and were
governed by the Punjab Communist 749 Detenus Rules, 1950, which were framed by
the Government of Punjab under section 4(a) of the Preventive Detention Act set
out above and which constituted the body of rules prescribing the conditions of
their maintenance, discipline, etc. Their confinement in the prisons was for
the sake of administrative convenience and was also prescribed by the rules
themselves and the provisions of the Prisons Act did not apply to them. It
could not therefore be validly contended that the proceedings taken against the
petitioners by the Jail Superintendent constituted a prosecution and punishment
of the petitioners before a judicial tribunal.
So far as the jail offence alleged to have
been committed by reason of the petitioners having resorted to hunger strike
was concerned, the Jail Superintendent obviously considered that he could
adequately punish the petitioners for that jail offence and he did not think it
necessary to have resort to the provisions of rule 41 (2) and forward the
petitioners to the Court of the Magistrate without having himself dealt with
them. It is common ground that the Jail Superintendent acted under rule 41 (1),
and having satisfied himself that the petitioners were guilty of that jail
offence awarded them one or more of the punishments therein prescribed, viz.,
stopping the letters and interviews for two months with effect from the 7th
February, 1950, and stopping the papers and books for the duration of the
hunger strike. In our opinion this was tantamount to inflicting punishment on
all the three petitioners for this jail offence and that having been done it
was not competent to the Jail Superintendent after 7-1/2 months of the hunger
strike to forward the petitioners to the Court of the Magistrate as be
purported to do, and such reference was wholly unauthorised by the rule and
without jurisdiction and the prosecution before' the Magistrate is obviously
not in accordance with procedure established by law and the petitioners may
well complain of a breach or a threatened breach of the fundamental right
guaranteed to them by article 21 of the Constitution in that the prosecution of
the 750 petitioners before the Magistrate for the jail offence of having resorted
to the hunger strike was not competent according to the procedure established
by law. The Petitions Nos. 171 of 1951 and 172 of 1951 filed by Vidya Rattan
and Parma Nand must' therefore be accepted and their prosecution in the Court
of Shri P. L. Soudhi, M.I.C., Ferozepur, under rule 41(2) of the Punjab
Communist Detenus Rules, 1950, for having committed a jail offence in resorting
to hunger strike must be quashed.
The same order will also be passed in the
petition of Jagjit Singh, being Petition No. 170 of 1951, in regard to the jail
offence committed by him by having resorted to the hunger strike. Jagjit Singh
however is being prosecuted in the Court of the Magistrate for having committed
offences under sections 332 and 353 as also sections 147 and 149 of the Indian
Penal Code. It was contended by the Advocate General of Punjab that there was
no prosecution and no punishment awarded to Jagjit Singh in regard to there
offences; and he relied upon the entries in the punishment register under the
date 6th February, 1950, with reference to these offences. These entries in the
punishment register show that Jagjit Singh was not punished for any of these
offences but he was to be sent up for trial and in the meantime he was to be
separately confined.
Jagjit Singh on the other hand relied in
particular on the evidence of Sher Singh who was the Assistant Superintendent
of the Central Jail, Ferozepur, at all material times and his evidence would
have helped Jagjit Singh considerably had it not been for the fact that the
entries in the punishment register completely belie his version and he further
states that Jagjit Singh was punished not only for the offence of assault but
also rioting which could in no event have been done by the Jail Superintendent
under the rules.
So far as the prosecution under sections 147
and 149 of the Indian Penal Code is concerned that is an 751 offence which is
not comprised in the jail offences enumerated in rule 40 nor could it have been
dealt with by the Jail Superintendent under rule 41 (1). That offence was
moreover covered by the proviso to rule 41(2) and was exclusively triable by
the Magistrate. The prosecution of Jagjit Singh therefore before the Magistrate
for the offences under sections 332 and 353 and sections 147 and 149 of the
Indian Penal Code is not in violation of article 20 (2) or article 21 of the
Constitution and must therefore proceed.
The result therefore is that the Petition No.
170 of 1961 filed by Jagjit Singh will be allowed only to the extent that the
appropriate writ of prohibition shall issue against the respondent in regard to
his prosecution for having committed a jail offence in resorting to hunger
strike, but his prosecution under sections 332 and 353 and sections 147 and 149
of the Indian Penal Code will not be affected by this order. The Petitions Nos.
171 of 1951 and 172 of 1951 filed by Vidya Rattan and Parma Nand respectively
will be accepted and the appropriate writs of prohibition shall issue against
the respondent as prayed for therein.
Appeal No. 81 dismissed.
Petitions Nos. 171 and 172 allowed.
Petition No. 170 partly allowed.
Agent for the appellant in Criminal Appeal
No. 81: P. K. Chatterjee.
Agent for the respondent in Criminal Appeal
No. 81 and Petitions Nos. 170, 171 & 172: G. K. Rajadhyaksha.
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