WHILE dealing with the two separate criminal applications filed by the former Chief Minister N Chandrababu Naidu and people’s representative N Anand Babu and their 64 associates of the undivided Andhra Pradesh under section 482 of the Criminal Procedure Code for quashing of FIR and criminal case registered against them at the Dharmabad Police Station in Nanded district on July 20, 2010, Justices Mangesh S Patil and Shailesh R Bramhe have, at the Aurangabad Bench of the Bombay High Court, found no illegality in registration of crime against the applicants in the judgement delivered on May 10, 2024. The HC has observed that it is suffice for the purpose to observe that the applicants are being charged for the offences punishable under different sections of the IPC. Even if some ingredients like use of criminal force is a prison offence under section 45 of the Prisons Act, 1894 and the offence punishable under section 353 and as the applicants are charged for various other offences which are not even similar leave aside the same as prison offences, since the Act and Punishment Rules framed in 1963 there under do not expressly provide for any specific procedure debarring registration of FIR and crime under section 154 and preventing a Magistrate from taking cognisance thereof in respect of the offences under the IPC committed within the premises of a prison. Further, the Court found nothing wrong with the investigation by the Police and the cognisance taken by the Magistrate.

 

The HC rejected all the objections raised by the applicants’ counsel, as “legally not sustainable”. The HC has pointed out that a bare reading of section 59 and its Clause 4 would demonstrate that a State Govt. could declare certain offences under the IPC which are also prison offences to be dealt with as prison offences. It cannot be read to convey a meaning that the offences committed within the prison, which are clearly offences under the IPC be converted or tried as prison offences irrespective of the fact that the ingredients for constituting the prison offences and that of the offences under the IPC are merely overlapping to some extent. It will have to be read to mean that if an act which is an offence under the IPC is also a prison offence and ingredients of both are exactly same that the State Government under this enabling provision could lay down the rules for dealing with such acts committed within a prison. A conjoint reading of sections 46 and 52 of the Act and Rule 25 of the Punishment Rules of 1963 would reveal that the Jail Superintendent has been conferred with a power to inflict punishment under section 46 for the prison offences defined under section 45. Section 52 enables him, to forward a prisoner to the Magistrate First Class, who apparently, in the absence of any specific procedure laid down in the Act, may have to try the prisoner even for a prison offence and inflict punishment.

 

In this context, it is pertinent to note that Rule 24 of the Punishment Rules also would come into play. It is for punishment by Magistrate for prison offence, where a prisoner is sent in accordance with provisions of section 52 for trial by Magistrate and the Magistrate declines to act under the said section, the Superintendent may, subject to these rules, award any punishment specified in section 46 which he considers to be expedient and which the prisoner is fit to undergo. A plain reading of Rule 24 would indicate that even if the Superintendent in exercise of the powers under section 52 forwards a prisoner to a Magistrate, the latter may decline to act under that section. Meaning thereby, that it is not mandatory for a Magistrate to try a prisoner forwarded to him by the Superintendent by resorting to section 52 of the Act. This is for obvious reason that the Magistrate has not been conferred with any jurisdiction and power independently to conduct a trial for any prison offence. Keeping in mind these logical consequences, a careful reading of Rule 25 would demonstrate that when an act committed by the prisoner constitutes a prison offence punishable under section 46 and also an offence under IPC, the Superintendent may, in his discretion either inflict a punishment under section 46 or forward the prisoner to the Magistrate First Class for trial.

 

The proviso to Rule 25 expressly mentions that a prisoner committing the offences under the IPC enlisted therein should invariably be prosecuted. Though it has not been expressly mentioned and the proviso merely uses the word ‘prosecuted’ it would be logical to interpret this proviso to mean that prosecution for the offences enlisted therein committed by a prisoner, the Superintendent should invariably take steps for prosecuting the prisoner. Thus, the substantive rule confers a discretion upon the Superintendent as to the manner in which a prisoner committing a prison offence and the same offence under the IPC could be dealt with, he cannot undertake any enquiry in respect of the offences enlisted under the proviso. The conspicuous absence of any reference to section 52 in this Rule 25, “in the considered view “of the HC, is indicative of the intention of the Legislature to see to it that if the offences enlisted therein are committed by a prisoner within the precincts of a prison, the only way to deal with them should be always a prosecution under the IPC. This rule cannot be understood as providing for a discretion in the Superintendent and confer him with the power under section 52 of the Act if a crime is committed under the IPC in respect of the sections of the IPC mentioned in the proviso. Therefore, according to the HC, the Rule 25 cannot be read as providing for any procedure to be followed by the Superintendent under the Prisons Act or dealing with the offences under the IPC, except where those are exactly the offences which are defined as prison offences under section 45.The purpose of this all is to obviate double jeopardy. Interplay between the provisions of two different penal statutes wherein the ingredients of some offences are overlapping has been considered by the Supreme Court and the High Courts in several cases, the recent being the State of Uttar Pradesh v. Aman Mittal - (2019)19 SCC 740. The High Court has kept interim relief in operation till July 8, 2024.