The principle of double jeopardy does not apply if the person has not been prosecuted and punished for the same offence earlier.

V.K. TAHILRAMANI, J.

1. Heard both sides.

2. Rule. By consent, Rule is made returnable forthwith.

3. The case of the petitioner is that in the year 2007 when he was released on furlough, he overstayed his furlough leave by 132 days. On account of this, three days of remission was cut off for each day of overstay. Thereafter, in the year 2012, the petitioner was released on furlough on 3.12.2012. On that occasion, he overstayed his furlough leave by 31 days. Due to this overstay, four days of remission was cut off for each day of overstay. The prayer of the petitioner is that the prison punishment be waived or reduced to cutting of remission of one day for each day of overstay.

4. Further case of the petitioner is that thereafter, he preferred two applications for parole and furlough which came to be rejected. As far as his case that on two occasions, his parole and furlough applications were rejected is concerned, the petitioner has stated that he has no grievance in this respect and he has accepted the decisions whereby his parole and furlough applications were rejected. Thus, his only prayer is that the orders of cutting his remission be set aside. The case of the petitioner is that he has accepted the punishment of rejection of his parole and furlough applications on account of overstaying when he was released on furlough earlier, in such case, he cannot be punished again for the overstay by cutting his remission on account of overstay.

5. The learned Advocate for the petitioner also submitted that the petitioner is being punished twice which cannot be allowed. She claimed that it is a case of double jeopardy under Article 20(2) of the Constitution of India. She submitted that on account of overstay, his two applications for furlough and parole came to be rejected and in addition thereto, punishment has been imposed on the petitioner of cutting remission, hence, according to her, it is clearly a case of double punishment i.e double jeopardy. She also relied upon Section 300 of Code of Criminal Procedure.

6. The argument advanced on behalf of the petitioner is that it is a case of double punishment in the sense that for the overstay, punishment was imposed of not being released on parole and furlough and in addition, remission was cut. Thus, the petitioner has been doubly punished which is in violation of Article 20(2) of the Constitution of India and which cannot be allowed under Section 300 of Code of Criminal Procedure.

7. Double jeopardy is a concept which would amount to violation of Article 20(2) of the Constitution of India and it is also barred under Section 300 of the Code of Criminal Procedure. On going through the provisions of Article 20(2), as well as Section 300, we find that the accused cannot derive any benefit therefrom. We are of the opinion that it is not a case of double jeopardy. The only condition precedent for application of the principle of double jeopardy is that the person concerned has been prosecuted and punished for the same offence. Article 20(2) reads as under:-

" 20. Protection in respect of conviction for offences :-

(1) ....................

(2) No person shall be prosecuted and punished for the same offence more than once;

(3) ................... "

The Apex Court in the case of Maqbool Hussain Vs State of Bombay, 1953 (Cri. L.J. 1432 : 2010 ALL SCR (O.C.C.) 294 held that the words “before a Court of law or judicial tribunal” are not to be found in Article 20(2), yet in order to invoke the protection of Article 20(2), there must have been a prosecution and punishment in respect of the same offence before a Court of Law or Tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorized by law to administer. The Article contemplates proceedings of criminal nature before a Court of law in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure. It was also held that Article 20(2) incorpo