High Court
Legal Reasoning
APPLNs 3428 23 104824.odt(2)Danial H. Walcott Vs. Superintendent, Nagpur Central Prison; (1972) 74 Bom LR 436(3)State of U.P. Vs. Singhara Singh & Ors;(1964) 1 Cri.L.J. 263 (2). 16.Mr. Luthara would submit that since it is a matter of prison offence,the maximum punishment being one year of imprisonment, bar underSection 468(2) of the Code of Criminal Procedure would be applicable.17.Per contra, the learned A.P.P. would submit that there are specific andprecise allegations not only in the F.I.R. but even in the statements of thewitnesses recorded under Section 161 of the Code of Criminal Procedurewhich ultimately resulted in filing of the charge-sheet and the Magistratehas correctly taken cognizance. Admittedly, the applicants were lodged in atemporary prison, but by sharing common intention and in a concertedmanner together with the rest of the accused persons, have assaulted policeparty while they were being taken to Aurangabad Central Prison. There areinjury certificates of several police officials. The applicants are invoking thepowers of this Court under Section 482 of the Code of Criminal Procedureand this Court in exercise of such powers cannot undertake a threadbarescrutiny. The purport of enquiry is limited in ascertaining if prima facie thefacts and circumstances justify drawing of inference regarding commissionof crime being charged. He would, therefore, submit that as far asallegations of facts are concerned they clearly make out the crime for whichthe applicants have been charge-sheeted.18.The learned A.P.P. would then point out that the stand being taken bythe applicants about they having been falsely implicated after theprosecution in 64/2010 was withdrawn under Section 421 of the Code ofCriminal Procedure is factually incorrect. He would advert out attention tothe copy of the order passed by the learned Magistrate in S.C.C. No.237/2010 and particularly the time and date placed by the learned7/21 APPLNs 3428 23 104824.odtMagistrate below his signature. He would point out that the order waspassed on 20.07.2010 at 7.30 hours, whereas; already the incident hadtaken place and even the F.I.R. was lodged in the afternoon hours of20.07.2010. He would also point out that even the injury certificates woulddemonstrate that the injured constables were examined by the concernedMedical Officer of Rural Hospital Dharmabad in the afternoon hours of20.07.2010.19.The learned A.P.P. would then submit that certainly Prisons Act is aspecial statute and provides for certain procedure to be followed and conferspower on the Superintendent in the circumstances indicated in Section 52and Punishments Rules in respect of the prison offences when he is of theopinion that adequate punishments cannot be inflicted therefor andforwarding and requiring the Magistrate to deal with it. However, he wouldsubmit that the allegations would reveal that though the incident had takenplace in the premises of I.T.I., which was notified as a temporary prison,several police personnel were assaulted, sustained injuries and theaforementioned offences with which they have been charged are clearly theoffences under the respective Indian Penal Code sections and are moreserious than the prison offences as defined under Section 45 of the Act. Hewould submit that the Act does not contain specific procedure to befollowed in respect of the acts taking place within the prison but which donot constitute prison offences. He would, therefore, submit that theprocedure contemplated under the Act could not have been followed in thelight of the alleged incident wherein in a concerted manner and by sharingcommon intention the police personnel were assaulted, may be in thepremises of prison with intent to prevent them from taking the applicantsand other accused to Aurangabad Central Prison. He would submit thatthere is no error or illegality in the informant-jailer reporting the matter topolice in order to set the criminal law in motion by lodging the F.I.R. andregistration of the crime and its investigation undertaken by the police8/21 APPLNs 3428 23 104824.odtunder the Code of Criminal Procedure. He would, therefore, submit thatsubmission of the learned Senior Advocate Mr. Luthara is not sustainable inlaw.20.We have carefully considered the rival submissions and perused thepapers.21.As far as the allegations are concerned, we have no manner of doubtthat there is enough material to reveal complicity of both the applicants incommission of the crime. The F.I.R. expressly alleges about the applicant-accused no. 1 having instigated the fellow prisoners and even threatened ofthere being war between the two states and the incident having taken placein the manner which has been alleged. There are statements of thewitnesses also expressly attributing role to these applicants. There areinjury certificates of 12 police personnel. Though the injuries are simple,some of them have sustained multiple injuries. When it is a matter ofnumber of prisoners carrying out assault on the police personnel, who werethere to escort them to the Aurangabad Central Prison in buses, with a viewto deter them from discharging their duty and in the process have causedsimple hurt and when the applicants are alleged to have instigated thefellow prisoners, in our considered view, it is well neigh clear that theoffence was committed by sharing a common intention and the applicantscan even be charged for abetment. 22.Considering the fact that the F.I.R. was lodged promptly and even theinjured police personnel were medically examined immediately afteroccurrence of the incident, there is enough material revealing complicity ofthe applicants in commission of the crime with which they have beencharged and it would not be appropriate to quash the crime and the criminalcase under Section 482 of the Code of Criminal Procedure.23.Now, turning to the major objections of Mr. Luthara, there cannot be a9/21 APPLNs 3428 23 104824.odtdispute about the position in law that Chapter X of the Act lays downprovisions relating to the offences in relations to prisons. Section 42provides for penalty for introduction or removal of prohibited articles into orfrom prison and communication with prisoners. By Section 43 officer of aprison has been conferred with a power to arrest a prisoner for the offenceunder Section 42. Section 44 requires the Superintendent of the prison tocause a notice in English and vernacular of the acts prohibited under Section42 and the penalties.24.Chapter XI of the Act contains the provisions regarding prisonoffences. Section 45 declares certain acts committed by prisoner to beprison offences and Section 46 provides for the punishment for committingsuch offences. Section 45 reads as under :“45. Prison-offences —The following acts are declared to beprison-offences when committed by a prisoner :—(1) such wilful disobedience to any regulation of the prison asshall have been declared by rules made under section 59 tobe a prison-offence ;(2) any assault or use of criminal force ;(3) the use of insulting or threatening language ;(4) immoral or indecent or disorderly behaviour ;(5) wilfully disabling himself from labour ;(6) contumaciously refusing to work ;(7) filling, cutting, altering or removing handcuffs, fetters orbars without due authority ;(8) wilful idleness or negligence at work by any prisonersentenced to rigorous imprisonment ;(9) wilful mismanagement of work by any prisoner sentencedto rigorous imprisonment ;(10) wilful damage to prison-property ;(11) tampering with or defacing history-tickets, records ordocuments ;(12) receiving, possessing or transferring any prohibitedarticle ;10/21 APPLNs 3428 23 104824.odt(13) feigning illness ;(14) wilfully bringing a false accusation against any officer orprisoner ;(15) omitting or refusing to report, as soon as it comes to hisknowledge, the occurrence of any fire, any plot or conspiracy,any escape, attempt or preparation to escape, and any attackor preparation for attack upon any prisoner or prison-official ;and(16) conspiring to escape, or to assist in escaping, or tocommit any other of the offences aforesaid.25.Section 48 then provides that the Superintendent of the Prison shallhave power to award the punishments provided in Section 46 and 47. Subsection 2 of Section 48 expressly provides that no officer subordinate to theSuperintendent shall have power to award any punishments.26.Section 49 then provides that the punishments contemplated in theAct to be in accordance with these preceding provisions of section 45 to 48.27.Mr. Luthara would submit that the allegations in the F.I.R. and thestatements of witnesses would make out the acts committed by theapplicants to be prison offences enlisted in Section 45. Therefore, by virtueof Section 48 it is only the Superintendent of Prison who has the power toimpose punishments. He would, therefore, submit that the informant whowas merely a senior jailer could not have acted independently and did nothave power and could not have set the criminal law in motion by lodgingthe F.I.R.28. At the first blush the argument seems attractive. However, it isimportant to note that the offence registered in the impugned F.I.R. andcrime against these applicants are only the offences under the Indian PenalCode. Conspicuous absence of any mention or reference to any prisonoffence either in the F.I.R. or in the charge-sheet is eloquent enough todiscard the submission of Mr. Luthara. Had there been any attempt to11/21 APPLNs 3428 23 104824.odtsimultaneously invoke the provisions of the Indian Penal Code as well as theprison offences defined under Section 45 of the Act, the submission of Mr.Luthara would have worked for the benefit of the applicants. The impugnedcrime and the charge-sheet merely seek to attract the provisions of theIndian Penal Code. Therefore, the submission of Mr. Luthara would not belegally tenable to lay emphasis on the provisions contained in Chapter XIand particularly Section 48 which confers power to award punishments forthe prison offences on the Superintendent.29.Contemplating such a conclusion Mr. Luthara would advert ourattention to Section 52 of the Act which prescribes procedure on committalof heinous offence. This section reads as under :“52. Procedure on committal of heinous offence—Ifany prisoner is guilty of any offence against prison-discipline which, by reason of his having frequentlycommitted such offences or otherwise, in the opinion of theSuperintendent, is not adequately punishable by theinfliction of any punishment which he has power under thisAct to award, the Superintendent may forward suchprisoner to the Court of any Magistrate of the first class orPresidency Magistrate having jurisdiction, together with astatement of the circumstances, and such Magistrate shallthereupon inquire into and try the charge so broughtagainst the prisoner, and, upon conviction, may sentencehim to imprisonment which may extend to one year, suchterm to be in addition to any term for which such prisonerwas undergoing imprisonment when he committed suchoffence, or may sentence him to any of the punishmentsenumerated in section 46 : Provided that any such case may be transferred forinquiry and trial by a Chief Presidency Magistrate to anyother Presidency Magistrate : andProvided also that no person shall be punished twicefor the same offence”.30.Mr. Luthara would submit that it is only the Superintendent who12/21 APPLNs 3428 23 104824.odtforms an opinion that the prison offences being committed by a prisonerfrequently cannot be dealt with adequate punishment provided under theAct, he can forward the prisoner to the Court of the District Magistrate orany Magistrate of the First Class having jurisdiction together with astatement of the circumstances and thereafter the Magistrate can undertakean enquiry into and try the prisoner for the charge and sentence him.31.True it is that the punishments provided for the offences definedunder Section 45 are apparently minor like; issuing warning, changinglabour to a severe form or hard labour for seven days, loss of privilege,changing the fabric being owned, imposition of handcuffs, imposition offetters, separate confinement for three months, penal diet, cellularconfinement, whipping. Interestingly, even if the Superintendent underSection 52 forwards a prisoner to a Magistrate with a view that he receivesmore severe punishment, as can be seen the maximum imprisonment towhich a prisoner would be liable even if he is tried by a Magistrate would beone year in addition to the punishment provided under Section 48.32.As can be seen the offences with which the applicants have beencharged like Sections 353, 324, 332, 336, 337, 323, 504,506 read withSection 109 and 34 of the Indian Penal Code, would attract a more severepunishment than a Magistrate would otherwise be capable of in the mattersof the prisoners forwarded to him under Section 52 of the Act. We aremerely pointing out this circumstance to indicate that apart from the factthat, as is observed herein above, the ingredients for constituting theoffences with which the applicants have been charged like Sections 353,324, 332, 336, 337, 323, 504,506 read with Section 109 and 34 of theIndian Penal Code are easily deducible from the charge-sheet, there is noquestion of they being punished for any prison offences. Section 52 merelyenables the Superintendent, under certain circumstances, to forward aprisoner to a Magistrate of the First Class with a view to attract more severepunishment than that is available and can be inflicted under Section 46. The13/21 APPLNs 3428 23 104824.odtcharge-sheet does not seek to try the applicants for any prison offence. Inour considered view, looked at from this angle Section 52 is merely anenabling provision and cannot be considered as either an express or impliedbar on the powers of the Magistrate to take cognizance of more seriousoffences, other than the prison offences committed inside the precincts ofthe prison nor would the police machinery be barred from registering acognizable crime committed inside the prison by registering an F.I.R. underSection 154 of the Code of Criminal Procedure. Accepting the submissions ofMr. Luthara would be to read the provisions of the Act as if some immunityis provided to the prisoners in respect of the offences which are not prisonoffences. This could not have been the intention of the legislature.33.It is to be borne in mind that considering the list of acts whichconstitute prison offences contained in Section 45, only few of the actswould be covered by the provisions of the Indian Penal Code like carryingout any assault or use of criminal force or use of insulting or threateninglanguage. Mr. Luthara would, therefore, submit that since clause 2 ofSection 45 expressly declares ‘any’ assault or use of criminal force to be aprison offence, the allegations contained in F.I.R. and the charge-sheetwould squarely be covered by this clause 2 of Section 45. He would advertour attention to the definition of ‘force’ (section 349), ‘criminal force’(section 350) , ‘assault’ (section 351) from the Indian Penal Code.34.Though some ingredients of Section 353 of the Indian Penal Codewould be covered by this clause 2 of Section 45 of the Act, that is not theexclusive and only ingredient of the offence punishable under Section 353 ofthe Indian Penal Code, which makes any use of force or criminal forceagainst a public servant with intent to prevent him from discharging hispublic duty. It would be fallacious to say that only because clause 2 ofSection 45 uses word ‘any’ before the word ‘assault’, the legislature couldhave contemplated all the offences under the Indian Penal Code irrespective14/21 APPLNs 3428 23 104824.odtof any other ingredient, to be covered by that clause. We are merelydemonstrating this with reference to Section 353 being charged against theapplicants. As far as Section 323, 324 and other sections being invokedagainst the applicants are concerned, none of the prison offences definedunder Section 45 cover the aspect of causing hurt as an ingredient. If thisbe so, it cannot be said that the provisions of the Act impliedly debar policein registering a cognizable offence and undertaking investigation or wouldprevent a Magistrate from taking cognizance of the offences committedwithin the premises of prison which do not constitute prison offences asdefined under Section 45.35.This takes us to the submission of Mr. Luthara whereby he wouldpoint out that by virtue of Clause 4 of Section 59 of the Act the State ofMaharashtra has promulgated Punishments Rules. He would submit thatSection 59 of the Act confers upon the State Government power to makerules by notification in the official gazette consistent with the provisions ofthe Act and under Clause 4, in respect of declaring the circumstances inwhich acts constituting both, a prison offence and an offence under theIndian Penal Code, may or may not be dealt with as a prison offence.36.A bare reading of this Section 59 and its Clause 4 would demonstratethat a State Government could declare certain offences under the IndianPenal Code which are also prison offences to be dealt with as prisonoffences. It cannot be read to convey a meaning that the offences committedwithin the prison which are clearly offences under the Indian Penal Code beconverted or tried as prison offences irrespective of the fact that theingredients for constituting the prison offences and that of the offencesunder Indian Penal Code are merely overlapping to some extent. It willhave to be read to mean that if an act which is an offence under the IndianPenal Code is also a prison offence and the ingredients of both are exactlysame that the State Government under this enabling provision could lay15/21 APPLNs 3428 23 104824.odtdown the rules for dealing with such acts committed within a prison.37.Mr. Luthara would advert our attention to Rule 25 of the PunishmentsRules and would submit that these rules having been framed under Clause 4of Section 59 of the Act, it seeks to provide the steps to be taken by theSuperintendent in the circumstances in which the acts which constituteprison offences and offences under the Indian Penal Code. He would submitthat as laid down in the proviso, wherever the State legislature intendedthat the Superintendent should exercise the power under Section 46 he mayforward the prisoner to a Magistrate of First Class.38.Rule 25 of the Punishments Rules reads as under :“25. Acts constituting both prison offence and offence under IndianPenal Code, how to be dealt with :- Where an act of a prisoner constitutes an offence under section46 of the Prisons Act, 1894 and also an offence under the Indian PenalCode, the Superintendent may, in his discretion, use his powers undersection 46 of the Prisons Act, 1894 and award the punishment orforward the prisoner to a Court of the Magistrate of the First Classhaving jurisdiction, for trial:Provided that a prisoner committing any of the followingoffences shall be prosecuted, namely:-(a) Rioting-Section 147, Indian PenalCode.Rioting.Section 148, Indian PenalCode.Rioting armed withdeadly, weapon.Section 152, Indian PenalCode. Assaulting or obstructing apublic servant whensuppressing riot.(b) Escape -Section 222, Indian PenalCode.Intentional omission toapprehend on part of apublic servant.Section 223, Indian PenalCode.Escape from confinementor custody negligentlysuffered by a publicservant.Section 224, Indian PenalCode. Resistance or obstructionby a person to his lawful16/21 APPLNs 3428 23 104824.odtapprehension.(c) Offences affectinghuman body-Section 302, Indian PenalCode.Murder.Section 303, Indian PenalCode.Murder by a person undersentence of lifeimprisonmentSection 304, Indian PenalCode.Culpable homicide notamounting to murder.Section 304-A, IndianPenal CodeCausing death by rash andnegligent act.Section 309 Indian PenalCode. Attempt to commitsuicide.Section 323, Indian PenalCode. Voluntarily causinggrievous hurt.Section 326, Indian PenalCode.Voluntarily causinggrievous hurt bydangerous weapon ormeans.d) Any offence triableexclusively by a Court ofSessions.39.A conjoint reading of Sections 46 and 52 of the Act and Rule 25 of thePunishments Rules would reveal that the Superintendent has been conferredwith a power to inflict punishment under Section 46 for the prison offencesdefined under Section 45. Section 52 enables him, as is observed earlier, toforward a prisoner to the Magistrate of First Class, who apparently, in theabsence of any specific procedure laid down in the Act may have to try theprisoner even for a prison offence and inflict punishment.40.It is pertinent to note in this context that Rule 24 of the PunishmentsRule also would come into play and reads thus :“24 Punishment by Magistrate for prison offence :- Where a prisoner is sent in accordance with theprovisions of Section 52 for trial by a Magistrate and theMagistrate declines to act under the said Section, theSuperintendent may, subject to these rules, award any17/21 APPLNs 3428 23 104824.odtpunishment specified in section 46 which he considers tobe expedient and which the prisoner is fit to undergo.”41.A plain reading of Rule 24 would indicate that even if theSuperintendent in exercise of the powers under Section 52 forwards aprisoner to a Magistrate, the latter may decline to act under that section.Meaning thereby that it is not mandatory for the Magistrate to try a prisonerforwarded to him by the Superintendent by resorting to Section 52 of theAct. This is for the obvious reason that the Magistrate has not beenconferred with independently any jurisdiction and power to conduct a trialfor any prison offence.42.Bearing in mind these logical consequences, a careful reading of Rule25 would demonstrate that when an act committed by the prisonerconstitutes a prison offence punishable under Section 46 and also an offenceunder Indian Penal Code, the Superintendent may in his discretion eitherinflict a punishment under Section 46 or forward the prisoner to theMagistrate of First Class for trial. The proviso to Rule 25 expressly mentionsthat a prisoner committing the offences under the Indian Penal Codeenlisted therein should invariably be prosecuted. Though it has not beenexpressly mentioned and the proviso merely uses the word ‘prosecuted’ itwould be logical to interpret this proviso to mean that prosecution for theoffences enlisted therein committed by a prisoner, the Superintendentshould invariably take steps for prosecuting the prisoner. Thus, thesubstantive rule confers a discretion upon the Superintendent as to themanner in which a prisoner committing a prison offence and the sameoffence under the Indian Penal Code could be dealt with, he cannotundertake any enquiry in respect of the offences enlisted under the proviso.The conspicuous absence of any reference to Section 52 in this Rule 25, inour considered view, is indicative of the intention of the legislature to see toit that if the offences enlisted therein are committed by a prisoner within theprecincts of a prison, the only way to deal with them should be always a18/21 APPLNs 3428 23 104824.odtprosecution under the Indian Penal Code. This rule cannot be understood asproviding for a discretion in the Superintendent and confer him with thepower under Section 52 of the Act if a crime is committed under the IndianPenal Code in respect of the sections of the Indian Penal Code mentioned inthe proviso. Therefore, according to us, Rule 25 cannot be read as providingfor any procedure to be followed by the Superintendent under the PrisonsAct or dealing with the offences under the Indian Penal Code, except wherethose are exactly the offences which are defined as prison offences underSection 45.43.We, therefore, are unable to accept these submissions of Mr. Lutharalaying emphasis on Rule 25 that the informant who was a senior jailer couldnot have lodged the F.I.R. and the police could not have registered andinvestigated it. As is mentioned earlier, the offences with which theapplicants have been charged inter alia include Section 323 of the IndianPenal Code which is incidentally is mentioned in the list of the offencesunder the Indian Penal Code in the proviso to Rule 25. Again, the rest ofthe offences with which the applicants are being charged like 353, 324, etc.of the Indian Penal Code are independent offences and cannot be said to beidentical to any prison offence defined under Section 45. The Act and thePunishments Rules framed under clause 4 of Section 59 of the Act do not laydown any mechanism or procedure for setting the criminal law in motion inrespect of the crimes under the Indian Penal Code committed within thepremises of a prison which are neither prison offences nor are the offencessimilar to the prison offences.44.It is to be remembered that the whole exercise in comparing theoffences which have been made punishable under the special statutes whichincidentally are offences under the general law that is Indian Penal Code isto obviate double jeopardy. The issue has bothered the Supreme Court as19/21 APPLNs 3428 23 104824.odtwell as several High Courts. Interplay between the provisions of twodifferent penal statutes wherein some ingredients of the offences areoverlapping has been considered by the Supreme Court and the High Courtsin several matters, the recent being The State Of Uttar Pradesh vs AmanMittal; (2019) 19 SCC 740.45.We need not burden this judgment by elaborating on the point.Suffice for the purpose to observe that the applicants are being charged forthe offences punishable under different sections of the Indian Penal Code.Even if some ingredients like use of criminal force is a prison offence underSection 45 of the Act and the offence punishable under Section 353, and asthe applicants are being charged for various other offences which are noteven similar leave aside the same as the prison offences, since the Act andthe Punishments Rules framed there under do not expressly provide for anyspecific procedure debarring registration of F.I.R. and crime under Section154 and preventing a Magistrate from taking cognizance thereof in respectof the offences under the Indian Penal Code committed within the premisesof a prison, we find no illegality in registration of the crime against theapplicants, its investigation by the police and the cognizance taken by theMagistrate. Consequently, even this objection being raised by Mr. Luthara isnot legally sustainable.46.The Applications are rejected.47.The Criminal Application No. 1025 of 2024 in Criminal Application20/21 APPLNs 3428 23 104824.odtNo. 3428/2023 is disposed of. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)49.After pronouncement of the judgment learned Senior Advocate Mr.Luthara requests for extension of the interim order.50.Interim relief to continue till 08.07.2024. ( SHAILESH P. BRAHME, J.) (MANGESH S. PATIL, J.)mkd/-21/21
Arguments
APPLNs 3428 23 104824.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 3428 OF 2023WITH APPLN/1025/2024 IN APPLN/3428/2023Nara Chandrababu Naidu s/oKharjura Naidu,Age 74 years, Adult Indian Inhabitant,R/o. Karakatta Road, Undavalli Village,Tadepalli Mandal, Guntur District, Andhra Pradesh State…ApplicantVERSUS1)State of Maharashtra2)Kishan Gopinathrao Khedkar,Sr. Jailer Nanded District Prison,Dharmabad, Maharashtra…Respondent…WITHCRIMINAL APPLICATION NO. 1048 OF 2024NAKKA ANANDA BABU,S/o NAGENDRAM,Age 58 years, Adult Indian InhabitantR/o H.No.7-6-350l5, l't Lane,Santhi Nagar, Guntur, Guntur District,Andhra Pradesh State – 522002…Applicant VERSUS1)STATE OF MAHARASHTRAThrough police station officer,Dharmabad Police Station, DharmabadDist:Nanded.2) KISHAN GOPINATH RAO KHEDKAR,Sr.Jailor Nanded District Prison,Dharmabad, Maharashtra.…Respondents…Advocates for Applicant : Mr. Sidharth Luthara, Senior Advocate a/w AayushKaushik i/b Mr. Satyajit S. Bora, a/w Ms. Pratibha Choudhari A.P.P. for Respondents/State : Mr. V.K. Kotecha1/21 APPLNs 3428 23 104824.odtCORAM: MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.RESERVED ON PRONOUNCED ON :: 03.05.2024 10.05.2024JUDGMENT : (PER : MANGESH S. PATIL, J.)By way of these separate applications under Section 482 of the Codeof Criminal Procedure, accused No. 1 and accused no. 16 from Crime No.67/2010 registered with Dharmabad Police Station District Nanded on20.7.2010 for the offences punishable under Sections 353, 324, 332, 336,337, 504, 506 read with Section 109 and Section 34 of the Indian Penalcode, are seeking quashment of the crime, the charge-sheet and the criminalcase.2.At the request of the parties, we have heard both these matterssimultaneously and finally.3.The sum and substance of the allegations, as can be discerned are tothe effect that both these applicants who are ex Chief Minister and PeoplesRepresentatives along with their associates totalling 66 persons werearrested in connection with Crime No. 64/2010 registered with same policestation on 17.07.2010 for the offences punishable under Sections 143, 188of the Indian Penal Code and 135 of the Maharashtra Police Act. They wereproduced before the concerned Magistrate at Dharmabad and wereremanded to magisterial custody till 19.07.2010.4.The Collector, Nanded by passing appropriate order notified theIndustrial Training Institute, Dharmabad (ITI) and the Government RestHouse, Dharmabad as temporary prisons for housing male and femaleaccused respectively. The informant who was serving as a senior jailer in theDistrict Prison at Nanded was appointed as a jailer at the temporary prisonat I.T.I. and was assisted by a police officer Mr. S.G. Rathod. 2/21 APPLNs 3428 23 104824.odt5.The F.I.R. further alleges that since the magisterial custody was to endon 19.07.2010 in a special seating in the I.T.I. Dharmabad itself theMagistrate again remanded them to magisterial custody till 26.07.2010.6.As per the instructions of the D.I.G. Prisons, Maharashtra State and inview of the security arrangements, the jailer was directed to shift all theprisoners including the applicants to the Central Jail Aurangabad.Accordingly, the Superintendent of Police, Nanded made necessaryarrangement and deputed police officers and constables and providedvehicles. Since the applicants and other accused refused to cooperate andstarted making arguments and started insisting for air conditioned buses tobe provided for shifting them, they were confined in the temporary prisonduring that night.7.It is then alleged that as per the request of the applicants and otheraccused, in the next morning on 20.07.2010 air conditioned buses were keptready by 9 a.m. The District Magistrate Nanded, Superintendent of PoliceNanded, Sub Divisional Police Officers and other officers then asked theapplicants and the other prisoners to board the buses. However, theyrefused and thereafter in an arrogant manner hurled abuses in Telgu andEnglish. When the informant-jailer and police constables told them that thebuses were ready and requested them to board, the applicant-accused no. 1refused to do so and declared that if they were forced to board the busesthere would be an unrest and conflict between Maharashtra and Telanganaand flatly denied to be taken to Aurangabad. He also instigated the otherprisoners and all of them in a concerted manner created terrorizingatmosphere, started hurling abuses in Telgu and English and used criminalforce and even assaulted these police constables. An attempt was made tosnatch the camera, which was video graphing the incident. When the otherpolice staff, which was standing outside heard the commotion. They rushedinside the prison but were assaulted. Their heads were smashed against a3/21 APPLNs 3428 23 104824.odtwall. Some were pushed, others were kicked and slapped. Couple of policeconstables were seriously injured and some police officers and constablesalso sustained different injuries. Thereafter additional force was called andone by one each of the accused were made to board the bus.8.It is then alleged that in the meantime even the women prisoners whowere housed in the rest house were brought to the I.T.I. but even they hurledabuses and used criminal force against the police party. Some how the policemanaged to transfer all these accused persons to Aurangabad Central Jail.Mr. Khedkar, Jailor, lodged the report with Dharmabad police station and thecrime was registered at around 14:30 hours of 20.07.2010. 9.The learned Senior Advocate Mr. Luthara for the applicants wouldsubmit that Crime No. 64/2010 in which the applicants and the otheraccused persons were remanded to magisterial custody itself was withdrawnunder Section 421 of the Code of Criminal Procedure on the same day thatis on 20.07.2010 and the Magistrate had passed the order discharging them.However, the machinery could manipulate and falsely implicate theseapplicants in the present crime being aware about such withdrawal of theprosecution.10.He would submit that the allegations are false and concocted. Nospecific and exclusive role is attributed to these two applicants. There isnothing to demonstrate about all the prisoners having shared commonintention with these applicants or the latter having abetted the crime.Section 149 of the Indian Penal Code has not been invoked. Merely becausethe applicants were present that they have been implicated without anymaterial. No exclusive overt act is attributed to either of them. It would beabuse of the process of law to make them face the trial, in the light of Stateof Haryana and Ors V/s. Bhajan Lal and Ors.: AIR 1992 Supreme Court,604.4/21 APPLNs 3428 23 104824.odt11.Mr. Luthara would then submit that since the incident had taken placeinside a temporary prison, lawfully notified under the relevant provisions,the provisions of the Prisons Act, 1894 (hereinafter ‘the Act’) and the Rulesframed thereunder particularly the Maharashtra Prisons (Punishments)Rules, 1963 (hereinafter ‘Punishments Rules’) would come into play. Hewould submit that by virtue of Section 52 of the Act procedure has beencontemplated in respect of the prison offences as defined under Section 45.The Superintendent of Prison who has been conferred with a power underRule 25 of the Punishments Rules to forward the accused prisoners to theMagistrate having jurisdiction. He would submit that Rule 25 of thePunishments Rules which are framed under Section 59(4) of the Act wouldbe relevant and is applicable where the acts committed by the prisonersconstitute both, a prison offence and an offence under Indian Penal Codeand lays down the steps to be taken. He would submitted that as per Rule25 of the Punishments Rules only two avenues are available; (1) an enquirycontemplated under Section 45 and 46, (2) making a complaint to theMagistrate by the Superintendent of Prison as contemplated under Section52 of the Act. The option of filing the F.I.R. by a jailer is no wherecontemplated. In this regard, he would place reliance upon followingdecisions :(1)State of Haryana Vs. Ghaseeta Ram;(1983) 3 SCC 766(2)Shalik Maruti Kowe Vs. State of Maharashtra;2014 SCC OnLine Bom. 4879(3)Selvam Vs. State of Tamil Nadu;2014 SCC OnLine Mad 10243.(4)Sanjay Vs. State of Gujarat2009 SCC OnLine Guj 705612.Mr. Luthara would then submit that a bare reading of Section 4 and 5of the Code of Criminal Procedure would act as an implied bar forundertaking any investigation into and trying of the offences committedunder the special statutes. He would refer to following decisions :5/21 APPLNs 3428 23 104824.odt(1)Dhanraj N. Asawani vs. Amarjeetsingh Mohindersingh Basi; 2023 OnLine SC 991.(2)V. C. Chinnappa Goudar vs. Karnataka State Pollution Control Board; (2015) 14 SCC 53513.Mr. Luthara would then submit that whether a particular act is aprison offence or not can only be considered by the Superintendent underSection 52 of the Act and a Magistrate does not have any jurisdiction toembark upon it. However, the Superintendent in the present matter has notundertaken any exercise under Section 52 of the Act and it would go to theroot of the investigation and even the power of the Magistrate to takecognizance and undertake a trial in respect of the incident which admittedlyhas occurred in the temporary prison duly notified. He would submit that ina given case, the criminal law could be set in motion in respect of any suchincident but that could only be by way of a complaint under Section 200 ofthe Code of Criminal Procedure.14.On facts, he would demonstrate that the prison offences as definedunder Section 45 of the Act expressly declares ‘any assault’ and wouldsubmit that even section 353 of the Indian Penal Code in the present factsituation would be covered by Section 45 of the Act. He would strenuouslytake us through the definitions of ‘force’ (Section 349) ‘criminal force’(Section 350) and ‘assault’ (Section 351) and the illustrations under Section351 of the Indian Penal Code to buttress his submissions.15.Mr. Luthara would, lastly, submit that the F.I.R. has been filed by Mr.Khedkar, who was a Senior Jailer of Nanded District and was not theSuperintendent and was not competent to set the criminal law in motion bylodging the F.I.R. He would refer to following decisions :(1)Joga Singh Vs. State of Haryana; (1988) 1 RCR (Cri) 145.6/21