Full Judgment Text
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PETITIONER:
MAQBOOL HUSSAIN
Vs.
RESPONDENT:
THE STATE OF BOMBAY.JAGJIT SINGHV.THE STATE OF PUNJAB.VIDYA
DATE OF JUDGMENT:
17/04/1953
BENCH:
BHAGWATI, NATWARLAL H.
BENCH:
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 Act-
Panishment 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
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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 pro-
ceedings 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.
JUDGMENT:
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
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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
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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
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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 con-
travention 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
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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,
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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 con-
troversy 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
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", " 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
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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
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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 ad-
judication 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 therefrom 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
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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
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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,
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"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
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(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 sub-
rule (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 Super-
intendent 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
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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
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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 Magis-
trate. 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 AdvocateGeneral of Punjab. The
petitioners were communist detenus and were governed by the
Punjab Communist
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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
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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
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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
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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
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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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