1953 (4) TMI 19 - SC - Customs

Prosecution under sections 332, 353, 147 and 149 IPC may proceed; Article 20(2) and 21 protections not breached

MAQBOOL HUSSAIN Versus THE STATE OF BOMBAY

SC held that prosecution before the Chief Presidency Magistrate for offences under sections 332, 353, 147 and 149 IPC did not violate articles 20(2) or 21 ... Whether by reason of the proceedings 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? Held that:- 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. ISSUES PRESENTED AND CONSIDERED 1. Whether proceedings and an order of confiscation and offer of a monetary alternative by Sea Customs Authorities constitute 'prosecuted and punished' within the meaning of article 20(2) of the Constitution (the protection against double jeopardy). 2. Whether proceedings and summary disciplinary punishment imposed by a Jail Superintendent under rules framed pursuant to preventive-detention legislation constitute a 'prosecution and punishment' within article 20(2) (and whether such administrative action precludes subsequent criminal prosecution for the same conduct). 3. Whether, where an administrative authority has already inflicted disciplinary punishment under a statutory rule, a later reference or prosecution to a criminal court for the same disciplinary act is competent, or is barred as not being 'in accordance with procedure established by law' and thus violative of article 21 when jurisdictional or procedural limits have been exceeded. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Whether Sea Customs adjudication amounts to 'prosecution and punishment' under article 20(2) Legal framework: Article 20(2) embodies the common-law principle of autrefois convict / double jeopardy but, as framed, requires both that a person has been 'prosecuted and punished' for the same offence. Article 367 imports the General Clauses Act; under it 'offence' means an act or omission made punishable by law. Statutory scheme: Sea Customs Act confers powers of search, seizure and confiscation (including option to pay a fine in lieu of confiscation), limited summary penalties, appeals to administrative authorities and criminal-process safeguards (e.g., reference to Magistrate for arrests, search warrants). Precedent treatment: The Court relied on British and American authorities describing autrefois convict/double jeopardy, and on this Court's test for judicial tribunals (as in the decision adopting Cooper v. Wilson), to determine what constitutes a judicial adjudication for article 20(2) purposes. Interpretation and reasoning: The Court emphasized that article 20(2) contemplates proceedings 'before a court of law or a judicial tribunal' - bodies required to decide controversies judicially on evidence on oath and authorised to administer oath. The tests for a judicial tribunal require (inter alia) presentation of the parties' cases, ascertainment of facts by evidence, and a decision disposing of the whole matter by application of law to facts. The Sea Customs Authorities, while empowered to adjudge confiscation and limited penalties, operate as administrative machinery for levy and recovery of customs duties: they are not bound to decide on evidence on oath, cannot administer oaths, have limited penal powers, provide appeals/revision to executive bodies (Chief Customs Authority, Central Government), and enforce recovery ultimately through Magistrates. Confiscation under the Sea Customs Act is in rem and administrative in character; and the procedure is not assimilated to judicial criminal procedure. Ratio vs. Obiter: Ratio - administrative confiscation/adjudication under Sea Customs Act does not amount to prosecution and punishment by a court or judicial tribunal for article 20(2); therefore double jeopardy protection is not attracted. Observations on the character of confiscation as potentially punitive in some contexts are explanatory but not dispositive of article 20(2) application. Conclusion: Proceedings and the confiscation order by Sea Customs Authorities did not constitute 'prosecuted and punished' within article 20(2); a subsequent criminal prosecution for the same statutory act under another enactment (Foreign Exchange Regulation Act) was not barred by article 20(2). Issue 2 - Whether Jail Superintendent's disciplinary proceedings under detention rules constitute 'prosecution and punishment' under article 20(2) Legal framework: Preventive Detention Act empowered appropriate Government to specify conditions of detention including discipline and punishment by rule-making (section 4(a)). The Punjab Communist Detenus Rules made the Jail Superintendent the authority to inquire 'as he thinks fit' into jail offences and to award specified punishments (confinement in cells, suspension of privileges etc.); rule 41(2) permitted referral to a Magistrate where Superintendent considered summary punishment inadequate. The Prisons Act contains provisions for judicial enquiry/trial of prisoners in other contexts, but the Rules in question created a self-contained disciplinary code for detenus. Precedent treatment: The Court accepted the Advocate-General's submission that the detenus were governed by the preventive-detention rules (a self-contained code) and that the Prisons Act provisions did not apply to them; it applied the judicial-tribunal tests and the textual limits of the Rules in assessing whether the Superintendent's action was judicial or administrative. Interpretation and reasoning: The Rules authorised the Superintendent to make such enquiry 'as he thinks fit', without prescribing oath-bound evidence or formal procedure; punishments are administrative and summary in character. Where the Superintendent considers his powers inadequate, he must forward the detenu to a Magistrate; conversely, once the Superintendent has exercised his authority and inflicted punishment under rule 41(1), he has no power under the rule to thereafter forward the same matter to the Magistrate for prosecution under rule 41(2) - such a later reference would be unauthorised and without jurisdiction. The Court treated the Superintendent's disciplinary action as a form of punishment (for example, cancellation of letters/interviews), and where such punishment was in fact inflicted, a subsequent criminal prosecution for the same disciplinary offence (as to which the Superintendent had already acted) was not in accordance with the rules and thus procedurally invalid. Ratio vs. Obiter: Ratio - disciplinary punishments actually awarded by the Superintendent under the Rules amount to punishment for the purposes of article 20(2) insofar as they are final administrative punishments within the self-contained disciplinary scheme; a subsequent prosecution in a Magistrate's Court for that same jail offence after summary punishment by the Superintendent (and with no lawful referral power remaining) is unauthorised and not in accordance with procedure established by law. Observations distinguishing prison disciplinary regimes from ordinary criminal trials and on the limits of referral are explanatory but central to the holding. Conclusion: Where the Superintendent, acting under the preventive-detention rules, has by lawful exercise of rule 41(1) satisfied himself of guilt and inflicted punishments (e.g., stopping letters/interviews, stopping books/newspapers), the detenus have been punished for that jail offence; a later attempt by the Superintendent to forward the case to a Magistrate for prosecution (after punishment) is unauthorised and such prosecution must be quashed as not in accordance with procedure established by law. Accordingly, prosecutions in respect of the hunger-strike jail offence were quashed. Issue 3 - Scope of subsequent criminal prosecution for separate, non-discipline offences Legal framework and reasoning: The Rules expressly preserve the Magistrate's exclusive jurisdiction over offences that, by their nature or by proviso (e.g., offences triable under IPC with imprisonment exceeding one year), are to be tried by the courts. Where an alleged act constitutes an offence under the IPC (for example rioting, assault) that is not within the ambit of the Superintendent's summary penalties, the Superintendent cannot lawfully punish that offence summarily in lieu of reference to the Magistrate; referral to and prosecution by the Magistrate for such IPC offences are not barred by prior disciplinary punishment for separate jail-offence categories. Conclusion: Prosecutions before Magistrates for offences outside the statutory summary discipline regime (e.g., certain IPC offences) are not barred by the Superintendent's exercise of disciplinary powers and may proceed; the preventive-detention disciplinary scheme does not oust criminal jurisdiction for such offences. Overall Disposition The Court held that (a) administrative proceedings and confiscation by Sea Customs Authorities do not amount to 'prosecution and punishment' under article 20(2) (so double jeopardy did not arise there), (b) lawful summary disciplinary punishment inflicted by a Jail Superintendent under valid detention rules does amount to punishment for the specified jail offence and, once inflicted, a subsequent unauthorized prosecution for that same jail offence is not competent and must be quashed, and (c) prosecutions for separate offences properly triable by courts (e.g., certain IPC offences) are not affected by the Superintendent's disciplinary action and may proceed.