SANJAY ALIAS BABULAL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE petitioner has approached this court, through jail, for raising his grievance against three consequences, which followed his not returning to jail after being released on furlough. In peculiar facts of the case and in view of legal issue involved, learned counsel, Mr. Ekant Ahuja was requested to assist the Court as an amicus curiae.

(2.) THERE is no dispute about the fact that after being released on furlough for 15 days on 14. 5. 2007, the petitioner had not returned to jail in time and absconded for 177 days till he was caught by the police and brought to jail. Pursuant to that offence, he was served with a charge-sheet dated 19. 12. 2007 in terms of Clause 1277 of the jail Manual, and after giving to him an opportunity of being heard, he was punished by order dated 1. 1. 2008 with forfeiture of two furloughs as well as forfeiture of the amount of surety bond. Thereafter, on the same facts and for the same offence, criminal case No. 312 of 2009 was initiated in the Court of learned Metropolitan magistrate, Ahmedabad, wherein, the petitioner having pleaded guilty, he was convicted and sentenced to fine of Rs. 400/- and imprisonment till rising of the Court, and in default, to undergo simple imprisonment for two months.

(3.) LEARNED Counsel, Mr. Ahuja pointed out that while first punishment by the jail authorities was inflicted under the provisions of Section 48-A of the Prisons act, 1894, as applicable in the State of gujarat, other punishment by the Court was inflicted upon the petitioner under the provisions of Section 51-B of the same Act. Relying upon the judgment of the Supreme court in State of Haryana v. Ghaseeta ram [air 1997 SC 1868], it was submitted that a person cannot be punished for the same offence twice, once by the jail superintendent, and second time by the trial court, on his conviction for the same offence. Learned APP submitted that ratio of the aforesaid judgment could not strictly apply in the facts of the present case insofar as relevant paragraphs of the Jail Manual were different and the proviso as found in section 52 of the Prisons Act was not added to the provisions of Section 51-B of the Act. It was, on that basis, vehemently argued by learned APP that both the proceedings, one under Section 48-A, empowering the Superintendent to punish, and complaint under Section 51-B for fixing of criminal liability of the convict for further punishment were permissible and co-existing in the statute, by virtue of the state Amendments, which were operating in Gujarat.