V.K. Tahilramani, J.

Heard both sides.

2. The case of the petitioner is that on 17.12.2012, when he was released on parole from 18.12.2012 for 30 days, he did not report back in time. As the petitioner did not surrender in time, case came to be registered against him on 16.11.2013 under Section 224 of IPC vide C.R. No. 248/13 of Byculla Police Station, Mumbai. On account of overstay, he was permanently removed from the remission register. It may be stated that as the petitioner did not report back in time, ultimately he was arrested by police and brought back to prison on 26.11.2013. Thus, there was overstay of parole by 259 days. The prayer of the petitioner is that the second punishment i.e. of permanently removing him from the remission register be quashed as it amounts to double jeopardy.

3. Thus, the petitioner has no grievance in respect of C.R. No. 248/13 which is pending trial but his only prayer is that the order of removing him from remission register be set aside. The case of the petitioner is that as he has overstayed his parole leave on account of which C.R. No. 248/13 was registered against him, in such case, he cannot be punished against for the overstay by removing him from the remission register.

4. Ms. Nasreen Ayubi, 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, C.R. No. 248/2013 was registered against the petitioner and in addition thereto, punishment has been imposed on the petitioner of removing him from the remission register, hence, according to her, it is clearly a case of double punishment i.e. double jeopardy as visualized by Article 20(2) of the Constitution of India. She also relied upon Section 300 of Code of Criminal Procedure.

5. The argument advanced on behalf of the petitioner is that it is a case of double punishment in the sense that for the overstay, C.R. No. 248/2013 was registered against him and in addition, punishment was imposed of removing him from remission register. 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.

6. 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 v. 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 authorised 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) incorporates within its scope the plea of "autrefois convict" as known to British Jurisprudence or the plea of "double je