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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.

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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

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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,

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 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

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 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

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

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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

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

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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.

752