SHAUKAT HUSSEIN HAJIBHAI SHAIKH Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner-prisoner has invoked Articles 14, 21 and 226 of the Constitution for the relief of releasing his third furlough leave, which was forfeited by an order of the jail authorities, pursuant to violation of condition of release committed by him. Perusing the jail record, copy of the order made by the jail authorities under Section 48-A of the Prison's Act, 1894 and summary proceedings of the learned Metropolitan Magistrate, Ahmedabad, in Criminal Case No. 271 of 2009, it is indisputable and clear that the petitioner has already undergone more than seven years of imprisonment, his behaviour in jail is reported to be good and he has been released twice on temporary bail. He was released on furlough for 28 days in the year 2006. Thereafter, when he was released for seven days on temporary bail on 8. 6. 2007, he did not surrender to jail in time and could be caught by the police after 229 days of abscondence. Pursuant to such behaviour and violation of the condition on which he was released from jail, the jail authority imposed, on 13. 2. 2008, punishment of forfeiture of third furlough and stoppage of canteen facility for one month. Another proceeding, on the basis of the same fact, under the provisions of Section 51-B was also initiated in the form of Criminal Case No. 271 of 2009 before learned Metropolitan Magistrate, wherein on 25. 3. 2009, the petitioner pleaded guilty and order imposing fine of Rs. 400/- was made on that basis.

(2.) LEARNED APP submitted that violation of the condition of release by the petitioner was not justified or even sufficiently explained and the petitioner has not challenged, by way of regular appeal, before I. G. Prison, order dated 13th February 2008, which was made under Section 48-A of the Prison's Act, 1894. She further submitted that violation by the prisoner was considered to be serious enough by the jail authorities to file appropriate complaint and the petitioner has already pleaded guilty to the offence under Section 51-B of the Prison's Act and paid the fine of Rs. 400/- imposed upon him by order dated 25. 3. 2009 of learned Metropolitan Magistrate, Ahmedabad.

(3.) IT was, however, fairly conceded that, as recently held by this Court in Special Criminal Application No. 1177 of 2009, jail authorities may exercise its limited jurisdiction to punish the prisoner under Section 48-A or, in a given case, launch prosecution after obtaining sanction of the Government for more severe punishment. However, even in absence of any express provision, fundamental and inalienable right of a citizen, not to be punished twice for the same offence as enshrined in Article 20 of the Constitution, cannot be taken away or abrogated. In the above facts of the present case, it is clear that the petitioner has been punished twice on the same set of facts under Section 48-A as well as the provisions of Section 51-B of the Prison's Act, 1894. Therefore, subsequent order of punishment made in Criminal Case No. 271 of 2009 by learned Metropolitan Magistrate, has to be set aside, and accordingly it is set aside. The petition is partly allowed accordingly with the direction that the petitioner shall be refunded the amount of fine paid by him pursuant to order dated 25. 3. 2009 of learned Metropolitan Magistrate in Criminal Case No. 271 of 2009. Rule is made absolute accordingly. Direct service is permitted.