judgement:
Civil Appeal No. 568 of 1961.
Appeal by special leave from the order dated February 17, 1958, of the Life Insurance Tribunal at Nagpur in Case No. 17/XVI A of 1957.
M.C. Setalvad, S.N. Andley, Rameshwar Nath and P.L. Vohra for the appellant.
C.K. Daphtary, Attorney General for India, S.T. Desai, S.J. Banaji and K.L. Hathi, for the respondent.
October 18, 1963.
The Judgment of the Court was delivered by 128 SUBBA RAO J.
This Appeal by special leave is directed against the order of the Life Insurance Tribunal, hereinafter called the "Tribunal", determining the dispute that was referred to it under s.16 of the (31 of 1956), hereinafter called the Act.
The appellant is a company duly incorporated under the Indian Companies Act, 1882, and the .
Prior to December 1957, its registered office was at Ajmer, but now it is in Calcutta.
It was a composite insurer carrying on life insurance and general insurance business.
The Act was passed to provide for the nationalization of life insurance business in India by transferring all such business to a Corporation established for the purpose.
The Act came into force on July 1, 1956.
On September 1, 1956, under section 3 of the Act the Central Government established a Corporation called the Life Insurance Corporation of India, hereinafter called the Corporation, which is the respondent in this appeal.
Under section 7 of the Act on the appointed day, which was September 1, 1956, all the assets and liabilities appertaining to the controlled business of all insurers were statutorily transferred to and vested in the Corporation.
Accordingly, the controlled business of the appellant as defined under the Act, i.e., all the business pertaining to its life insurance business, was transferred to and vested in the Corporation.
Thereafter disputes arose between the appellant and the respondent in the matter of ascertainment of the compensation payable to the appellant and in respect of incidental and consequential matters thereto.
By a letter dated May 21, 1957, the respondent offered to pay to the appellant towards compensation certain amount after setting off the amount due to it from the appellant in respect of part of the paid up capital of the controlled business and assets representing that part.
By letter dated August 9, 1957, the appellant refused to accept the said offer in toto.
On August 20, 1957, the respondent wrote a letter to the appellant informing it that as its offer was not accepted by the appellant 129 it had referred the dispute to the Tribunal.
In due course, both the parties, i.e., the appellant and the respondent, appeared before the Tribunal and filed their respective statements; and the Tribunal framed as many as 8 issues.
Issues Nos. 5, 6A, 7A and 7B which are relevant to the present enquiry read thus: Issue 5.
Whether the petitioner (appellant herein) is entitled to the sum of Rs. 12,36,415 or in the alternative to Rs. 6,60,369 or in the further alternative to Rs. 5,95,764 as worked out respectively in annexures A to C to the Statement of Claim.
Issue 6(A).
Whether the petitioner is entitled to the unpaid dividends attributable and pertaining to the General Insurance Business of the petitioner as claimed in paragraph 6 of the Statement of Claim.
Issue 7(A).
Whether the Tribunal has jurisdiction to grant interest on the amount of compensation.
Issue 7(B).
If so at what rate and for which period.
On issue 5 the Tribunal calculated the amount payable by the respondent to the appellant on the following lines: Amount payable towards compensation to the appellant was Rs. 5,95,764; out of the allocable paid up capital of Rs. 9_,79,683, the respondent had already received assets equivalent to Rs. 1,35,919; the balance receivable under that head was, therefore, Rs. 1,43,764; out of the sum of Rs. 5,95,764 payable to the petitioner appellant, the respondent was entitled to deduct Rs. 1,43,764; and the balance payable by the respondent to the appellant was Rs. 4,52,000.
Briefly stated what the Tribunal did was that it ascertained the compensation payable to the appellant and set off against that amount the balance of the amour due to it from the appellant towards the allocable paid up capital.
On Issue 6(A) it held that the appellant showed the unpaid dividends in the balance sheets as the liability of the life department, that it always regarded 1SC1/64 9 130 it as a liability appertaining to the life department and that as it was impossible to allocate the unpaid dividends of any shareholder to the several businesses carried on by the insurer, it would rely upon the books of accounts of the insurer to find out whether it was the liability of one department or the other.
On that reasoning it held that the entire liability for the unclaimed dividends and assets equivalent to that liability appertained to the controlled business and, therefore, statutorily vested in the respondent Corporation.
On issues 7(A) and 7(B) the Tribunal held that it had no jurisdiction to award interest on the amount of compensation.
On the basis of the said findings the respondent was directed to pay to the appellant within two weeks a sum of Rs. 4,52,000 less any sum that might have been paid by the respondent to the appellant by way of admitted compensation.
Hence the appeal.
Mr. Setalvad, learned counsel appearing for the appellant, raised before us the following three points: (1) the Tribunal had no jurisdiction to decide on the question of the capital allocable to the controlled business as there was no dispute thereto between the parties and the said question was, therefore, not referred to it; (2) the liability of the appellant Company for unclaimed dividends and assets equivalent to that liability were not transferred to and vested in the Corporation under s.7(1) of the Act: and (3) the appellant would be entitled to interest on the amount of compensation payable to it and the Tribunal had jurisdiction to award the same.
On the first question the learned counsel took us through the correspondence that passed between the parties and the pleadings before the Tribunal, and contended that the said correspondence, pleadings, and the issues disclosed that there was no dispute between the parties in respect of the capital allocable to the controlled business and, therefore, the Tribunal went wrong in deducting under that head a higher 131 amount than was agreed upon between the parties.
As the answer to this argument mainly depends upon the said correspondence and the pleadings, we shall briefly scrutinise them.
On May 21, 1957, the res pondent offered to the appellant to pay a sum of Rs. 3,30,023 in full satisfaction of the compensation payable to the appellant for the acquisition of its controlled business under the Act, and to set off ' against the said sum an amount of Rs. 1,71,365,1 being the part of the paid up capital of the appellant Company and assets representing such part, which had been allocated to the controlled business of the appellant Company in accordance with r.18 of the Life Insurance Corporation Rules, 1956, made under the Act.
The letter concluded thus: "As the aforesaid assets have not yet been transferred to the Corporation the said amount of Rs. 1,71,365 will be set off against, and form a deduction from, the amount of compensation payable to your Company.
" The offer was couched in clear and unambiguous terms.
It was a composite offer.
The letter could not be construed to contain two different matters, one an offer of compensation and the other a demand for payment of the amount due to the respondent in respect of the paid up capital allocable to the controlled business.
On the other hand, in express terms the offer was for payment of compensation after setting off the amount due to the respondent.
On August 9, 1957, the appellant wrote a letter in reply to the respondent 'section Therein an attempt was made to split up the offer.
The appellant stated that the amount of compensation offered in the letter, namely, the sum of Rs. 3,30,023 was not acceptable to it.
In regard to the amount of capital allocated by the Company to the controlled business, it stated that the assets worth Rs. 1,35,919 had already been transferred to the respondent and that having regard to the amount claimed by the respondent under that head, only a sum of Rs. 35,446 remained to be transferred to the Corporation by it.
It asked that the said amount 132 might be deducted from the amount of compensation that might be ordered and decreed to be 'paid to it by the Tribunal.
It would be seen from this letter that the appellant accepted a part of the offer and rejected the rest.
On August 20, 1957, the respondent replied to the appellant that as its offer was not accepted, it had sent the necessary paper to the Tribunal.
On August 22, 1957, the appellant received a notice from the Tribunal.
The preamble to that notice read: "Whereas you have not accepted the amount determined by the Corporation and offered in full settlement of the compensation to you under the Act and whereas you have requested the Corporation to have the matter referred to the Tribunal for decision and whereas the Corporation has so referred the matter.
" This clearly shows that the dispute before the Tribunal arose as the appellant did not accept the amount determined by the Corporation and offered in full settlement of the compensation payable to the appellant under the Act.
It does not indicate that the accepted part of the offer was considered to be a closed matter between the parties and the disputed part only was put in issue.
On September 13, 1957, the appellant wrote a letter to the respondent requesting it to pay the amount of compensation offered by it subject to adjustment on the basis of the decision to be given by the Tribunal.
It also requested the respondent to supply to it a copy of the calculation sheet to show how the amount of compensation offered by it had been arrived at.
On the same day, the respondent sent a copy of the said calculation sheet, which clearly showed not only the amount of compensation payable but also the amount of paid up capital allocable to the controlled business deductible therefrom.
On September 17, 1957, the respondent made it clear to the appellant that if the appellant agreed to accept the amount offered by it in full satisfaction of the compensation payable to the appellant under the Act, the respondent 133 could make payment of the said amount to it.
It is, therefore, clear that the dispute between the parties related to the composite offer made by the respondent i.e., the compensation payable as well as the set off of the amount due to the respondent calculated under r. 16 of the Rules made under the Act.
That this was the dispute is also apparent from the pleadings before the Tribunal.
On October 10, 1957, the appellant filed a statement before the Tribunal and in para 4 thereof, the contents of the letter written by the respondent on May 21, 1957 were extracted.
How the appellant understood the scope of the offer is clear from the following extract from the said paragraph: "By and under the said letter the Defendant inter alia stated that part of the paid up capital of the Claimant, and assets representing such part, which had been allocated to the controlled business of the Claimant in accordance with Rule 18 of the Life Insurance Corporation Rules, 1956, amounted to Rs. 1,71,365 and that as the aforesaid assets had not till then been transferred to the Defendant, the said amount of Rs. 1,71,365 would be set off against, and form a deduction from the amount of compensation payable to the Claimant.
" The appellant, therefore, understood the offer as a composite one.
In para 5 thereof, the appellant gave the contents of its reply.
On November 7, 1957, the respondent filed a statement before the Tribunal and in para. 3 thereof it reiterated its offer of compensation of Rs. 3,30,023 with a claim for set off on a calculation made in accordance with r.18 of the Rules.
Throughout the correspondence and in the pleadings the respondent was consistently standing by the composite offer.
It did not, either expressly or by necessary implication, accept the attempt made by the appellant to split up the said offer.
When one party makes a composite offer, each part thereof being dependent on the other, the other party cannot by accepting a part of the offer compel the other 134 to confine its dispute only to that part not accepted, unless the party offering the composite offer agrees to that course.
In this case not only there was no such agreement between the parties, but the respondent was throughout insisting upon the acceptance by the appellant of the entire offer in full settlement of the appellant 's claim against the respondent.
Reliance is placed upon the circumstance that there was no specific issue framed by the Tribunal in respect of the paid up capital allocable to the controlled business of the appellant.
But the pleadings clearly pinpoint the dispute between the parties in respect of the set off.
As we will indicate later in our judgment, the calculation of the amount due towards paid up capital allocable to the controlled business depends on a basic factor that goes into the calculation of the amount due towards compensation.
It was presumably found not necessary to frame a specific issue in respect thereof, for if that factor was settled one way or other, the amount due under the said head was only a matter of calculation and could certainly be taken into consideration in awarding the set off under the general issue, 8.
Further, it does not appear from the order of the Tribunal that this question was raised before it.
Indeed, it appears that both the parties proceeded on the basis that the calculation of the amount due towards compensation and that due towards paid up capital allocable to the controlled business were linked together and that by calculating the said two figures on the same basis one should be deducted from the other.
If the question raised before us had been raised before the Tribunal, one would expect the Tribunal to deal with that matter.
On the other hand, para 19 of the order shows that the appellant did not dispute the manner of the set off on the basis of the amount of compensation ascertained by the Tribunal.
Mr Setalvad contended that under section 16(1)of the Act, read with Part A of the First Schedule, com 135 pensation should be computed in accordance with the provisions contained in para 1 or para 2 and paid to the insurer on the basis of the computation which was more advantageous to him and that for the purpose of calculating the compensation payable in accordance with para 1 the amount representing the paid up capital allocable to the controlled business had no relevance.
He illustrated his argument by taking us through the alternative calculations made by the Tribunal and pointing out that while in the calculations made in terms of para 2 of Part A of the First Schedule the paid up capital allocable to the controlled business went into the calculations, in the calculations made in accordance with para 1 that item was not taken into consideration at all.
Though prima facie this argument appears to be plausible, a deeper scrutiny of the figures indicates that there is an integral connection between the compensation and the amount representing the paid up capital allocable to the controlled business.
Under r. 18(1) of the Rules, in respect of a Part A insurer like the appellant, the paid up capital allocable to the controlled business shall be that proportion of the total paid up capital of the insurer which the annual average of the profits from the controlled business during the period covered by the relevant actuarial investigation bears to the total of the annual average of profits plus two times the annual average of the profits from other business during that period.
The factor will be, Annual average of surplus Total of annual average of surplus PLUS two times the annual average of profits from non life business.
or shortly stated, L L+2 non L 136 On that basis the factor will be, Rs. 15,512.6 Rs. 90,523.8 (i.e. 15,512.6+75,011.2) =0.17136488 Rs. 15,512.6 being the annual average of surplus from the controlled business, as determined by the Corporation, and Rs. 75,011.2 being twice the annual average of profits from non life business.
It is not disputed that the paid up capital of the Company was Rs. 10,00,000.
If the factor was applied, the capital allocable to the controlled business would be, 0.17136488 Rs. 10,00,000 Rs. 1,71,365.
The compensation to be given by the Corporation to the insurer to whom Part A of the First Schedule to the Act applies it is conceded that the said Part applies to the appellant is 20 times the annual average of the share of the surplus allotted to the shareholders of the appellant.
On the basis that Rs. 15,512.6 was the annual average of the surplus allotted to the shareholders of the appellant, the Corporation ascertained the amount of compensation at a sum of Rs. 3,30,023 and offered the same to the appellant.
It will be seen from the aforesaid calculations that there is an integral connection between the compensation payable to the insurer and the amount representing the capital allocable to the controlled business transferred to the Corporation.
The common factor for both the amounts is the annual average of the surplus allotted to the shareholders.
The same surplus must be the basis for calculating both the figures.
Obviously two different figures cannot be given for the same surplus.
If two different figures are given for the same surplus, not only one of the calculations must be wrong, but also grave injustice would be done to one of the parties.
As the two figures cannot be disassociated, the respondent made a composite offer.
What happened before the Tribunal is this: the appellant in annexure C to the Statement of 137 Claim claimed that the annual average of the surplus deemed to be allocated to the share holders was Rs. 29,125.2; the respondent stated that it was only Rs. 15,512.6: and the Tribunal came to the conclusion that the said annual average of the surplus was Rs. 29,125.2.
The result was that the calculations made by the Corporation under the said two heads were upset.
On that basis, applying the same formula the compensation was raised to a sum of Rs. 2,79,683.18.
The Tribunal, therefore, rightly set off the said figures one against the other and held that the balance, after making other admitted deductions, was payable to the appellant.
The above discussion clearly establishes the reason why a composite offer was made and why the dispute in respect of the said offer could not be split up into two parts.
Both the amounts are payable under the provisions of the Act.
Calculation of both depends upon the same "surplus".
It is, therefore, reasonable to hold that the Act contemplates the setting off one against the other.
Rule 12A of the Rules confers ample jurisdiction on the Tribunal to effectuate the said intention of the Legislature.
The material part of r.12A reads: "The Tribunal may exercise jurisdiction in the whole of India and shall have power to decide or determine all or any of the following matters, namely : (iv) all claims for compensation payable under the Act to insurers whose controlled business has been transferred to and vested in the Corporation; and all matters connected with the determination, payment and distribution of such compensation.
(vi) such supplemental, incidental or consequential matters which the Tribunal may deem it ' expedient or necessary to decide or determine for the 138 purpose of securing that the jurisdiction vested in it under the Act and in respect of matters referred to above is fully and effectively exercised.
A combined reading of cls.
(iv) and (vi) of r. 12A of the Rules makes it abundantly clear that a claim for set off of the nature that we are now considering is certainly covered by the wide phraseology of cl.
(vi) of the said rule.
This rule, it is said, was introduced after the decision on the dispute in the instant case was given.
Be it as it may, the material clauses of the rule only recognize the pre existing principles inherent in the relevant dispute under the provisions of the Act.
This Court in National Insurance Co. vs Life Insurance Corporation of India (1) held that the claim for set off was within the jurisdiction of the Tribunal.
Hidayatullah J., speaking for the Court, observed at p. 1178: "No doubt, the Act says that the Corporation shall pay the compensation due to the Company but in another part it also says that the Company shall pay in lieu of the assets appertaining to the controlled business a sum of Rs. 6,00,000.
These two provisions of law must be read together and in our opinion the Corporation was entitled to a set off in respect of the amount due to it and the Tribunal was perfectly right when it ordered such a set off.
" We, therefore, hold that the dispute between the parties related not only to the compensation, but to the set off also, that dispute was referred to the Tribunal and that the Tribunal had jurisdiction to decide that dispute.
The Tribunal in para 19 of its order rightly set off the amounts due from the one to the other and held that the balance of Rs. 4,52,000 was only due to the appellant towards compensation.
The next question relates to the outstanding dividends or assets equivalent thereto taken posies (1) ; 139 sion of by the Corporation.
Some material facts may be stated.
The paid up capital of the Company was Rs. 10,00,000 divided into 40,000 shares of Rs. 25 each fully paid.
On September 28, 1953, the appellant declared a dividend of 4% amounting to a sum of Rs. 40,000; again on September 29, 1954, it declared a dividend of 4% amounting to a sum of Rs. 40,000; and again in the year 1955 it declared a dividend of 6 % amounting to Rs. 60,000.
In regard to the said amounts so declared certain payments were made to some of the shareholders and the balance of the outstanding dividends as on December 31, 1955, was Rs. 89,680.
The balance sheets of the Company showed the unpaid dividends as the liability of the life department.
Though the amounts representing the said dividends are not specifically shown in the assets, it cannot be disputed that the said amounts must have been included in the assets or cash shown in the balance sheets.
The result was that the entire liability for the unclaimed dividends and assets equal to that liability were taken over by the respondent.
The Tribunal relying on the books of account, the balance sheets and other documents of the Company held that the liability was only that of the life insurance business.
Mr. Setalvad, learned counsel for the appellant, contended that under section 7(1) of the Act only the assets and liabilities appertaining to the controlled business of an insurer shall be transferred to and vested in the Corporation and that the dividends declared and the assets equivalent to the said liability were assets and liabilities of the Company and not those appertaining to the controlled business and, therefore, they did not vest in the Corporation.
Section 7(1) of the Act reads: "On the appointed day there shall be transferred to and vested in the Corporation all the assets and liabilities appertaining to the controlled business of all insurers." An attempt is made to separate the Company 's assets and liabilities from the assets and liabilities 140 of the controlled business, and an argument is advanced that on a declaration of dividends the said dividends and the assets corresponding thereto cease to appertain to the business but belong to the Company.
The question, therefore, is whether the dividends declared and the amounts in the hands of the Company representing them appertain to the controlled business of the insurer.
Before we answer this question it will be convenient to know precisely the legal effect of a declaration of a dividend of a company.
In Palmer 's Company Law, 20th Edn., the legal position is stated thus, at p. 625: "Where a dividend is declared and becomes payable, it is a debt in England, as will be explained in the following section, a speciality debt and each shareholder is entitled to sue the Company for his proportion.
Until the dividend is declared and payable, the shareholder has no right to sue.
" In re Savern and Wye and Severn Bridge Railway Co.(1), Romer J. observed thus: "In the first place, they contend that the company was in the position of a trustee for them of these dividends.
In my judgment, this was not so.
The declaration that the dividend was payable did not make the company a trustee of it for the shareholders.
" The learned Judge said at p. 564 thus: "The dividends in question were declared and became payable more than twenty years before the present claims were made, and constituted debts due to the shareholders for which they could have sued at law, as was pointed out by Lindley L.J. in the passage in his treatise on Company Law (p. 437), which was cited in the argument before me." This decision is an authority for the view that when a company declares a dividend on its shares, a debt immediately becomes payable to each shareholder in respect of his share of the dividend for which (1) , 565.
141 he can sue at law and the declaration does not make the company a trustee of the dividend for the shareholder.
Indeed, this legal position is not disputed.
If so, the shareholders in the present case were only in the position of creditors in respect of the dividends declared in their favour and the amounts representing the dividends continued to be a part of the assets of the Company; and indeed the balance sheets filed in the present case show that no particular amounts had been earmarked for payment of dividends.
To put it differently, the amount equivalent to the dividends declared continued to be a part of the assets of the Company and the dividends continued to be its debts.
The said assets were part of the general assets of the Company and the said liabilities were part of the general liabilities of the Company.
There cannot be any difference in law, in the matter of ownership of the assets, between a part of the assets equivalent to the dividends declared and the rest of the assets.
With this background let us scrutinize the provisions of section 7(1) of the Act.
Under that sub section, on the appointed day there shall be transferred to and vested in the Corporation all the assets and liabilities appertaining to the controlled business of all insurers.
The first question is whether the dividends declared and the amounts representing the said dividends fell outside the expression "assets and liabilities" of the controlled business.
It is said that though they are part of the assets and liabilities of the Company, they do not appertain to the controlled business.
The word "appertain" in its ordinary meaning is "belong to, be appropriate to, relate to".
The assets and liabilities must, therefore, belong to the controlled business of the insurer.
That is no doubt a limitation or qualification imposed or made on "assets and liabilities".
As the section is providing for the transfer of assets and liabilities of a Company which may have businesses other than life insurance business, it has become necessary to say that the said assets and liabilities are those that pertain only to the controlled business.
The antithesis is not 142 between the Company and its business but between the controlled business and the other businesses of the insurer.
That this is so is clear from the exhaustive enumeration of the categories of property in sub s.(2) of section 7 of the Act constituting assets appertaining to the controlled business.
Sub section
(2) of section 7 embodies an inclusive definition and in a sense it enlarges the meaning of the word "assets".
The enumerated categories of assets include both movable and immovable properties and "all other interests and rights in or arising out of such property as may be in the possession of the insurer.
" Liabilities shall be deemed to include all debts and obligations of whatever kind existing at the time of the statutory transfer.
All the said rights and liabilities pertaining to the controlled business are transferred on the appointed day to the Corporation.
The said enumeration does not leave any margin for allotment of any assets to the Company as distinguished from its controlled business.
To illustrate, take the case of a company doing only the life insurance business.
How is it possible to hold that the declared dividends and the assets representing the said dividends are those of the company unconnected with the business ? That may be so if the declared dividends are held in trust by the Company for a shareholder.
But, as we have pointed out, the settled law on the point does not countenance any such concept of trust.
The shareholders can only realise their dividends from the assets of the business, for they include the amounts representing the dividends.
In any view, the definition of assets and liabilities of a controlled business in sub s.(2) of section 7 of the Act is certainly comprehensive enough to take in the said declared dividends and the corresponding assets.
We cannot, therefore, accept this argument.
Even so, it is contended that, the appellant being a composite insurer, the dividends declared and the assets equivalent to that liability appertained not only to the life business but also to the general business of the insurer and, therefore, under section 7(1) of 143 the Act only such part of the said assets and dividends allocable to the controlled business shall be transferred to the Corporation, but the Tribunal wrongly held that the entire dividends and the assets representing, the same were transferred to the Corporation.
To appreciate this argument, some of the relevant provisions may be noticed.
We have already noticed section 7 (1) of the Act where under all the assets and liabilities appertaining to the controlled business of, the insurer shall be transferred to an vested in the Corporation.
Explanation (a) to section 7 of the Act reads: "The expression "assets appertaining to the controlled business of an insurer" in relation to a composite insurer, includes that part of the paid up capital of the insurer or assets representing such part which has or have been allocated to the controlled business of the insurer in accordance with the rules made in this behalf." A further clarification is found in section 10 of the Act, which reads: (1) "For the removal of doubts it is hereby declared that in any case where an insurer whose controlled business has been transferred to and vested in the Corporation under the Act is a composite insurer, the provisions of the preceding sections shall only apply to the extent to which any property appertains to his controlled business and to rights and powers acquired, and to debts, liabilities and obligations incurred and to contracts, agreements and other instruments made by the insurer for the purposes of his controlled business and to legal proceedings relating to those purposes, and the provisions of those sections shall be construed accordingly." (2).
The Central Government may.
by rules made in this behalf, provide (b) for the allocation of the paid up capital or assets representing such paid up capital, 144 as the case may be, between the controlled business of the insurer and any other business; (c) for the apportionment and the making of financial adjustments with respect to any debts, liabilities or obligations incurred by any such insurer partly for the purposes of his controlled business and partly for other purchases and for any necessary variation of mortgages and encumbrances relating to such debts.
liabilities or obligations.
" Rule 18 of the Rules provides for the method of allocation of the paid up capital of the composite insurer.
These provisions make it clear that in the case of a composite insurer only such part of the assets and liabilities allocable to the controlled business shall be transferred to and vested in the Corporation.
As the dividends declared and the assets representing the said dividends appertain to the composite business, there is force in the argument of the learned counsel that only a part of such assets and liabilities referable to the controlled business could be transferred to and vested in the Corporation, and that the rest should be left with the insurer.
This argument is sought to be met by the learned Attorney General by contending: that the appellant showed the said assets and liabilities as part of the life insurance business in the balance sheets duly approved by the Controller under the (Act No. 4 of 1938) and, therefore, it is precluded from questioning the correctness of the said balance sheets.
This contention takes us to the consideration of the .
Sections 10(1)and 11 of the said Act provide for separations of accounts and funds, and maintaining of account and balance sheets for different businesses in the insurance line.
Under section 10(1), an insurer shall keep a separate account of all receipts and payments in respect of each class of insurance business mentioned ' therein; and under cl.
(2) thereof, if he carried on the business of life 145 insurance, all receipts due in respect of such business shall be carried to and shall form a separate fund, the assets of which shall, after the expiry of six months, be kept distinct and separate from all other assets of the insurer.
Section 11 of the enjoins every insurer in respect of insurance business transacted by him to prepare with reference to every year in accordance with the regulation contained in of the First Schedule a balance sheet in the forms set forth in of that Schedule.
Form A has two columns, one under the heading "Life Annuity Business" and the other under the heading "Other classes of business".
Under section 15(1) of the , the audited accounts and statements referred to in section 11 or section 13 (5) and the abstract and statement referred to in section 13 shall be furnished as returns to the Controller within the time prescribed thereunder.
Under section 21 of the said Act, if it appears to the Controller that any return furnished to him under the provisions of the is inaccurate or defective in any respect, he may get the necessary information from the insurer and decline to accept the same unless the inaccuracy has been corrected and the deficiency has been supplied before the time prescribed.
Under sub section
(2) of section 21 of the said Act, the Court may, on the application of an insurer and after hearing the Controller, cancel any order made by the Controller or may direct the acceptance of any return which the Controller has declined to accept, if the insurer satisfied the Court that the action of the Controller was in the circumstances unreasonable.
Section 22 of the said Act confers power on the Controller to order revaluation.
Section 23 thereof says that every return furnished to the Controller, which has been certified by the Controller to be a return so furnished, shall be deemed to be a return so furnished and under sub section
(2) thereof every document, purporting to be certified by the Controller to be a copy of a return so furnished, shall be deemed to be a copy of that return and shall be received in evidence as if it were the original return, unless some variation between 18CI/64 10 146 it and the original return is proved.
The first question is whether under the provisions of the the contents of a certified balance sheet of an insurer are binding on the insurer in a Collateral proceeding.
The provisions of the do not say that the correctness of the balance sheet certified by the Controller is conclusive for all purposes or that it could not be questioned in a collateral proceeding.
For the purpose of the it would be accepted as correct.
The said Act does not, expressly or by necessary implication, exclude the jurisdiction of courts and tribunals from going into the correctness of the said balance sheets.
There is also no provision in the making the contents of the said balance sheets final for the purpose of transfer to and vesting in the Corporation the assets and liabilities of the insurer.
It certainly affords valuable evidence in an enquiry before the Tribunal; but the contents of the balance sheets can be proved to be wrong.
Mr. Setalvad argued that for the purpose of convenience of disbursement of dividends, the entire amount is shown as appertaining to the life insurance business, as the head office in Ajmer was only dealing with life insurance business and making the disbursements.
Be it as it may, it is obvious in this case that the dividends declared appertained to the composite business and only a part of them appertained to the controlled business.
The relevant entries in the certified balance sheets are, therefore, not correct.
If so, it follows that under section 7(1) of the on the appointed day only such part of the said dividends and the corresponding assets appertaining to the controlled business were transferred to and vested in the Corporation.
The next question is how to apportion the said assets and liabilities between the Corporation and the Company.
Before the Tribunal the appellant did not ask for apportionment of the dividends but wanted a transfer of the entire liability to it with the assets 147 corresponding to ' the liability undertaking to reimburse the respondent for any claim of the shareholders against it.
In the petition for special leave the appellant did not specifically ask for apportionment of the dividends between the Corporation and the Company.
Even at the time of arguments Mr. Setalvad sought to sustain the claim of the appellant on a construction of section 7 of the Act, namely, that the said assets and liabilities only appertained to the Company, though at a later stage he pressed for apportionment as an alternative argument.
The main contention we have rejected.
Even if the apportionment was made, the allocable assets and liabilities would cancel each other, for both the Corporation and the Company would be liable to pay the entire amounts so allotted to the shareholders.
But there may be a practical advantage to one or other of the parties in so far as a shareholder or shareholders may not care to claim the dividends payable to him or them.
In the circumstances, we do not think we are justified in exercise of the extraordinary jurisdiction under article 136 of the Constitution to permit the appellant to raise the plea for the first time before us and to remand the matter to the Tribunal for apportionment of the dividends and the corresponding assets.
We, therefore, cannot accede to the request of Mr. Setalvad for this indulgence at this very late stage of the matter.
The last point relates to the payment of interest.
Both the parties agreed that in view of the decision of this Court in the National Insurance Co. Ltd. vs Life InSurance Corporation of India(1), the appellant will be entitled to interest at 4% on the sum of Rs. 4,52,000 from May 24, 1957, to the date of payment.
In the result, subject to the said modification, the appeal is dismissed with proportionate costs.
Appeal dismissed with modification.

summary:
On the enactment of the , providing for the nationalisation of life insurance business.
the 126 controlled business i.e., the life insurance business of the appellant, a composite insurer, vested in the respondent corporation.
Thereafter disputes arose between the appellant and the respondent in the matter of ascertainment of the compensation payable to the appellant and in respect of incidental and consequential matters thereto.
The respondent offered to pay the appellant towards compensation a certain amount after setting off the amount due to it from the appellant in respect of part of the paid up capital of the controlled business and assets representing that part.
The appellant refused to accept this offer in toto.
The dispute was referred to the Tribunal.
The Tribunal ascertained the compensation payable to the appellant and set off against that amount the balance of the amount due from the appellant towards the allocable paid up capital.
Relying upon the books of account of the appellant to find out whether the unpaid dividends of any share holder of the appellant was the liability of one department or the other, the Tribunal held that the entire liability for the unclaimed dividends and assets appertained to the controlled business, and therefore, statutorily vested in the respondent.
The Tribunal held that it had no jurisdiction to award interest on the amount of compensation.
On appeal by special leave, it was contended (i)that the Tribunal had no jurisdiction to decide on the question of the capital allocable to the controlled business as there was no dispute thereto between the parties and the said question was not referred to it; (ii) the liability of the appellant for the unclaimed dividends and assets equivalent to the liability were not transferred to and vested in the respondent under section 7(1) of the Act, and (iii) that the appellant would be entitled to interest on the amount of compensation payable to it and the Tribunal had jurisdiction to award the same.
Held: The dispute between the parties related not only to compensation, but to the set off also, that the dispute was referred to the Tribunal, and the Tribunal had jurisdiction to decide that dispute.
A combined reading of cls.
(iv) and (vi) of r. 12A of the Rules under the Act makes it abundantly clear that a claim for set off is certainly covered by the wide phraseology of cl.
(iv) of r. 12A.
The calculations under r. 18(1) show that there is an integral connection between the compensation payable to the insurer and the amount representing the capital allocable to the controlled business transferred to the respondent.
As these figures cannot be dissociated, the respondent made a composite offer.
The Act contemplates the setting off one against the other.
National Insurance Co. v Life Insurance Corporation of India ; , followed.
(ii) The definition of assets and liability of a controlled business in sub section
(2) of section 7 of the Act is certainly comprehensive enough to take in unclaimed dividends and corresponding assets.
Sub sections (1) and (2) of section 7 of the Act provides that the assists and liabilities to be transferred must belong to the controlled 127 business of the insurer.
The antithesis is not between the company and its business but between the controlled business and other business of the insurer.
All the rights and liabilities pertaining to the controlled business are transferred to the Corporation.
(iii) When a company declared a dividend on its shares, a debt immediately becomes payable to each shareholder in respect of his share of the dividend 'for which he can sue at law and the declaration does not make the company a trustee of the dividend for the shareholder.
In re Seven and Wye Severn Bridge Railway Co. , applied.
(iv) The provisions of the do not, expressly or by necessary implication, exclude the jurisdiction of the Courts and Tribunals from going into the correctness of the balance sheet certified by the Controller.
For the purpose of the it would be accepted as correct.
There is no provision in the making the contents of the balance sheet final for the purpose of transfer to and vesting in the Corporation the assets and liabilities of the insurer.
It certainly affords valuable evidence in an enquiry before the Tribunal; but the contents of the balance sheet can be proved to be wrong.
(v) The circumstances of the ease do not justify this Court exercise of the extraordinary jurisdiction under article 136 of the Constitution to permit the appellant to raise the plea of apportionment of the unclaimed dividends for the first time here and to remand the matter to the Tribunal for apportionment of the dividends and the corresponding assets.
(vi) In view of the decision of this Court in the National Insurance Co. Ltd. vs Life Insurance Corporation of India, the appellant will be entitled to interest at the rate of 4% on the amount of compensation.
National Insurance Co. Ltd. vs Life Insurance Corporation of India ; , followed.


judgement:
Appeal No. 96 of 1963.
Appeal by special leave from the judgment dated October 13, 1960, of the Punjab High Court in Income tax Case No. 21 of 1958.
K.N. Rajagopala Sastri and R.N. Sachthey, for the appellant.
A.V. Viswanatha Sastri and N.N. Keshwani, for the respondent.
November 18, 1963.
The Judgment of the Court was delivered by SHAH J.
M/S Indian Woollen Textiles Mills Amritsar hereinafter called 'the assessee ' had at different places in India, branches one of which was an industrial undertaking conducted in the name of Eldee Velvet and Silk Mills called for the sake of brevity 'Eldee '.
"Eldee" had advanced Rs. 3,21,460 to another concern, the Bombay Fine Worsted Manufacturers ' Castle Mills hereinafter called 'Castle '.
In the assessment year 1951 52, the assessee claimed under section 15C of the Indian Income tax Act,1922, exemption from tax in respect of 6% of the capital employed in 'Eldee ' as a newly established undertaking and sought to include in the computation of the capital so employed Rs. 3,21,460 advanced to 'Castle '.
The Income tax Officer, Special Circle Amritsar, and the Appellate Assistant Commissioner rejected the claim.
But the Income tax Appellate Tribunal modified the assessment and directed in clusion of the amount advanced to 'Castle ' in the computation of capital invested for the purpose of 429 section 15C.
An application submitted under section 66(1) of the Indian Income tax Act to the Tribunal to refer a question which it was contended by the Commissioner arose out of the order of the Tribunal was rejected and the petition of the Commissioner under section 66(2) for an order directing the Tribunal to state the case and refer it to the High Court was also dismissed.
With special leave the Commissioner has appealed to this Court.
The question in dispute before the revenue authorities was whether the business called 'Castle ' at Bombay was a branch of the assessee.
The Appellate Assistant Commissioner rejected the claim of the assessee to include the amount of Rs. 3,21,460 in the capital employed in the undertaking 'Eldee ', because in his view there were in these two undertakings the same eight partners with a share of /2/(two annas) each, and that the constitution of both the undertakings being the same, 'Castle ' could not be regarded as a separate entity.
The Tribunal disagreed with the view of the Appellate Assistant Commissioner, relying upon only one circumstance viz., that in the assessment for the year 1951 52 the income from 'Castle ' had not been computed and included in the assessment of the assessee.
It did not consider the other questions whether the constitution and ownership of the two businesses "were the same".
The High Court declined to require the Tribunal to state the case holding that the finding of the Tribunal was one of fact as it was based on the inference arising from the non inclusion by the Income tax Officer in the assessment in question of the income of 'Castle ' and that "the factor taken into consideration by the Appellate Tribunal in coming to the conclusion, it did," was a relevant factor.
Section 66(2) invests the High Court with jurisdiction to require the Appellate Tribunal to state a case and to refer it, if the Appellate Tribunal has refused to state the case on the ground that no question of law arises, and the High Court being approached 430 by the aggrieved party within the period of limitation prescribed, is not satisfied about the correctness of the decision of the Appellate Tribunal refusing to state the case.
Under the Income tax Act it is for the Tribunal to decide all questions of fact: the High Court has the power merely to advise the Tribunal on questions of law arising out of the order of the Tribunal.
In so advising the High Court must accept the findings of the Tribunal on matters of appreciation of evidence.
But the refusal of the Tribunal to state a case for the opinion of the High Court, on the view that a question of law does not arise out of the order is not conclusive.
The High Court has the power to call upon the Tribunal to state the case if in its view a question of law arises out of the order of the Tribunal.
Such a question may arise out of the findings of the Tribunal, and also if the Tribunal has misdirected itself in law in arriving at its finding.
It is not open to the Court to discard the Tribunal 's finding of fact, if there is some evidence to support the finding of the Tribunal on a question of fact, even if on a review of the evidence the Court might have arrived at a different conclusion.
It must however appear that the Tribunal had considered evidence covering all the essential matters before arriving at its conclusion.
If the conclusion of the Tribunal is based upon some evidence ignoring other essential matters, it cannot be regarded as a finding not giving rise to a question liable to be referred to the Court.
Non inclusion of the income of 'Castle ' in the assessment of the assessee may have been a relevant circumstance, but its effect had to be considered in the light of other circumstances on which the Appellate Assistant Commissioner had relied.
Moreover, reliance placed by the Tribunal upon the single circumstance on which its decision was founded had proceeded on an assumption that in the previous year to the year of assessment 1951 52, 'Castle ' had carried on business and had earned income.
The observations made by the Appellate Assistant Commissioner about 431 'Castle ' being separately assessed at Bombay in the status of a registered firm apparently refer to assessment of that business in subsequent years and not in the year of assessment 1951 52.
The conclusion of the Tribunal therefore suffers from a double infirmity: it assumes the only fact on which its conclusion is founded and ignores other relevant matters on which the Appellate Assistant Commissioner relied in support of his conclusion.
The Tribunal has therefore misdirected itself in law in arriving at its finding, and in refusing to require the Tribunal to state the case and to refer it, the High Court was, in our view, in error.
The appeal is therefore allowed and the proceedings are remanded to the High Court with a direction to proceed according to law.
Costs in this appeal will be costs in the High Court.
Appeal allowed and Case remanded.

dataset_name: IN-Abs

summary:
' Eldee ', one of the branches of the respondent had advanced a loan to another concern, 'Castle '.
The respondent claimed under section 15C of the Income Tax Act, exemption from tax in respect of 6 % of the capital employed in 'Eldee ' as a newly established undertaking and sought to include in the computation of the capital so employed the amount advanced to Castle '.
The Income tax Appellate Tribunal directed inclusion of the amount advanced to 'Castle ' in the computation of capital invested for the purpose of section 15C. The Commissioner 's application under section 66(1) of the Act to the Tribunal to refer a question which arose out of the order of the Tribunal was rejected and his petition under s 66(2) for an order directing the Tribunal to state the case and refer it to the High Court was also dismissed.
The question in dispute before the Revenue Authorities was whether 'Castle ' was a branch of the assessee.
The Appellate Assistant Commissioner thought that the same eight persons were partners in these two undertakings and that the constitution of both the undertakings being the same, 'Castle ' could not be regarded as a separate entity.
The Tribunal disagreed with that view relying upon only one circumstance that in the assessment for the year 1951 52 the income from 'Castle ' had not been computed and included in the assessment of the respondent.
Held : Under the Income tax Act it is for the Tribunal to decide all questions of fact: the High Court has the power merely to advise the Tribunal on questions of law arising out of the order of the Tribunal.
In so advising the High Court must accept the findings of the Tribunal on matters of appreciation of evidence.
But the refusal of the Tribunal to state a case for the opinion of the High Court, on the view that a question of law does not arise out of the order is not conclusive.
The High Court has the power to call upon the Tribunal to state the case if in its view a question of law arises out of the order of the Tribunal, and also if the Tribunal has misdirected itself in law in arriving at its findings.
It is not open to the court to discard the Tribunal 's finding of fact, if there is some evidence to support the finding of the Tribunal on a question of fact, even if on a review of the evidence the court might have arrived at a difficult conclusion.
It must however appear that the Tribunal had considered evidence covering all the essential matters before arriving at its con 428 clusion.
If the conclusion of the Tribunal is based upon some evidence ignoring other essential matters it cannot be regarded as a finding not giving rise to a question liable to be referred to the Court.
(ii) The conclusion of the Tribunal suffers from a double infirmity: it assumed the only fact on which its conclusion was founded and ignored other relevant matters on which the Appellate Assistant Commissioner relied.
The Tribunal had therefore misdirected itself in law in arriving at its finding, and in refusing to require the Tribunal to state the case and to refer it, the High Court was in error.


judgement:
iminal Appeal No. 81 of 1952.
Appeal by special leave from the Judgment and Order, dated 12th February, 1951, of the High Court of Judicature at Bombay in Criminal Application No. 644 of 1950.
Petitions Nos. 170, 171 and 172, being Petitions under article 32 of the Constitution, were also heard along with Appeal No. 81 of 1952.
Ishwarlal C. Dalal for the appellant.
M. C. Setalvad, Attorney General for India (Porus A. Mehta, with him) for the State of Bombay.
section M. Sikri, Advocate General of Punjab (Jindra Lal, with him) for the State of Punjab.
Jagjit Singh, Petitioner in Petition No. 170 of 1951, in person.
Other petitioners not represented.
April 17.
The Judgment of the Court was delivered by Bhagwati J.
95 732 BHAGWATI J.
This appeal by special leave from a judgment and order of the High Court of Judicature at Bombay raises an important question as to the construction of article 20(2) of the Constitution.
The appellant, a citizen of Bharat, arrived at the Santa Cruz airport from Jeddah on the 6th November, 1949.
On landing he did not declare that he had brought in gold with him but on search it was found that he had brought 107.2 tolas of gold in contravention of the notification of the Government of India dated the 25th August,1948.
The Customs Authorities thereupon took action under section 167, clause (8), of the Sea Customs Act VIII of 1878, and confiscated the gold by an order dated the 19th December, 1949.
The owner of the gold was however given the option to pay in lieu of such confiscation a fine of Rs. 12,000, which option was to be exercised within four months of the date of the order.
A copy of the order was sent on the 30th January, 1950, to the appellant.
Nobody came forward to redeem the gold.
On the 22nd March, 1950, a complaint was filed in the Court of the Chief Presidency Magistrate, Bombay, against the appellant charging him with having committed an offence under section 8 of the Foreign Exchange Regulation Act VII of 1947, read with the notification dated the 25th August, 1948.
The appellant thereupon on the 12th June, 1950, filed a petition in the High Court of Bombay under article 228 of the Constitution contending that his prosecution in the Court of the Chief Presidency Magistrate was in violation of the fundamental right guaranteed to him under article 20(2) of the Constitution and praying that as the case involved a substantial question of law as to the interpretation of the Constitution, the determination of which was necessary for the disposal of the case, the case may be withdrawn from the file of the Chief Presidency Magistrate to the High Court and the High Court may either dispose of the case themselves or determine the question of law and return it to the Chief Presidency Magistrate 's Court for disposal.
A rule was issued by the High Court on 733 the 26th June, 1950, which came on for hearing on the 9th August, 1950, before Bavdekar and Vyas JJ.
The rule was made absolute and the High Court directed that the proceedings pending against the appellant in the Court of the Chief Presidency Magistrate be withdrawn and brought before the High Court under article 228 of the Constitution.
The case was thereupon withdrawn and brought before the High Court and was heard by the High Court on the 17th October, 1950.
The learned Judges of the High Court, Chagla C.J. and Gajendragadkar J. were of the opinion that the appellant could claim the benefit of article 20(2) only if he was the owner of the gold which was confiscated and that before they decided as to whether there had been a prosecution and a punishment within the meaning of article 20(2) it was necessary that the Chief Presidency Magistrate should determine the question of fact as to whether the appellant was the owner of the gold which had been confiscated and in respect of which an option was given to him as stated above.
They therefore sent the matter back to the Chief Presidency Magistrate directing him to find a; to whether the appellant was or was not the owner of the gold stating that they would deal with the application after the finding was returned.
The Chief Presidency Magistrate recorded evidence and on the 20th January, 1950, recorded the finding that the appellant was the owner of the gold in question and returned the finding to the High Court.
Chagla C.J. and Gajendra gadkar J. heard the petition further on the 12th February, 1951.
They reversed the finding of the Chief Presidency Magistrate, dismissed the application of the appellant and directed that the case should go back to the Chief Presidency Magistrate for disposal according to law.
The appellant obtained on the 1st November, 1951, special leave to appeal against the judgment and order passed by the High Court.
The question that arises for our determination in this appeal is whether by reason of the proceedings 734 taken by the sea Customs Authorities the appellant could be said to have been prosecuted and punished for the same offence with which he was charged in the Court of the Chief Presidency Magistrate, Bombay.
There is no doubt that the act which constitutes art offence under the Sea Customs Act as also an offence under the Foreign Exchange Regulation Act was one and the same, viz., importing the gold in con travention of the notification of the Government of ,India dated the 25th August, 1948.
The appellant could be proceeded against under section 167(8) of the Sea Customs Act as also under section 23 of the Foreign Exchange Regulation Act in respect of the said act.
Proceedings were in fact taken under section 167(8) of the Sea Customs Act which resulted in the confiscation of the gold.
Further proceedings were taken under section 23 of the Foreign Exchange Regulation Act by way of filing the complaint aforesaid in the Court of the Chief Presidency Magistrate ' Bombay, and the plea which was taken by the accused in bar of the prosecution in the Court of the Chief Presidency Magistrate, was that he had already been prosecuted and punished for the same offence and by virtue of the provisions of article 20(2) of the Constitution he could not be prosecuted and punished, again.
The word offence has not been defined in the Constitution.
But article 367 provides that the (Act X of 1897), shall apply for, the interpretation of the Constitution.
Section 3(37) of the defines an offence to mean any act or omission made punishable by any law for the time being in force and there is no doubt that both under the provisions of section 167 (8) of the Sea Customs Act and section 23 of the Foreign Exchange Regulation Act the act of the appellant was made punishable and constituted an offence.
In order however to attract the operation of article 20(2) the appellant must have been prosecuted and punished for the same offence when proceedings were taken by the Sea Customs Authorities.
The 735 High Court did not go into the question as to whether the appellant was prosecuted when proceedings were taken before the Sea Customs Authorities.
It considered the question of punishment in the first instance and thought it necessary to arrive at a ' finding as to the ownership of the confiscated gold before it could consider the application of the appellant.
In the opinion of the High Court the appellant could be said to have been punished only if it were established that he was the owner of the confiscated gold.
If he was the owner, the confiscation was a punishment, which would not be so if he was not the owner of the gold.
This question of the ownership of the gold was not in our opinion material.
The gold was found in the possession of the appellant when he landed at the Santa Cruz airport.
The appellant was detained and searched by the Customs Authorities and the gold was seized from his person.
Proceedings under section 167(8) were taken by the Customs Authorities and after examining witnesses an order was passed on the 19th December, 1949, confiscating the gold and giving an option to the owner to pay a fine of Rs. 12,000 in lieu of such confiscation under section 183 of the Sea Customs Act.
Copy of this order was forwarded to the appellant and for all practical purposes the appellant was treated as the owner of the confiscated gold.
As a matter of fact when evidence was recorded before the Chief Presidency Magistrate on remand the Assistant Collector of Customs gave evidence that no one else had claimed the gold and had the appellant paid the penalty and obtained the Reserve Bank permit and produced the detention slip he would have been given the gold.
Once the appellant was found in possession of the confiscated gold the burden of proving that be was not the owner would fall upon whosoever affirmed that he was not the owner.
The complaint which was filed in the Court of the Chief Presidency Magistrate, Bombay, also proceeded on the footing that the appellant committed an offence in so far as he brought the gold without the permit from 736 the Reserve Bank of India, that no permit was ever applied for or granted to the appellant and that the appellant had been given an opportunity of showing whether he had obtained such permit but that he failed to produce the same.
It appears therefore that the question of the ownership could not assume as much importance is the High Court attached to it.
If the Court came to the conclusion that the appellant was prosecuted when proceedings were taken by the Sea Customs Authorities there was not much scope left for the argument that he was not punished by the confiscation of the gold and the option given to him to pay a fine of Rs. 12,000 in lieu of such confiscation.
To be deprived of the right of possession of valuable goods may well be regarded in certain circumstances as by itself a punishment.
We have therefore got to determine whether under the circumstances the appellant can be said to have been prosecuted when proceedings were taken by the Sea Customs Authorities.
The fundamental right which is guaranteed in article 20(2) enunciates the principle of "autrefois convict" or "double jeopardy".
The roots of that principle are to be found in the well established rule of the common law of England "that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence." (Per Charles J. in Beg.
vs Miles (1).
To the same effect is the ancient maxim "Nemo bis debet punire pro uno delicto", that is to say that no one ought to be twice punished for one offence or as it is sometimes written "pro eadem causa", that is, for the same cause.
This is the principle on which the party pursued has available to him the plea of autrefois convict" or " autrefois acquit".
" The plea of 'autrefois convict ' or 'autrefois acquit ' avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.
The question for the jury (1) 737 on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence.
The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials.
A plea of 'autrefois acquit 'is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter." (Vide Halsbury 's Laws of England, Hailsham Edition, Vol. 9, pages 152 and 153, paragraph 212).
This principle found recognition in section 26 of the , "where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence," and also in section 403 (1) of the Criminal Procedure Code, 1898, " A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236, or for which he might have been convicted under section 237.
" The Fifth Amendment of the American Constitution enunciated this principle in the manner following: ". . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself. . . . 738 Willis in his Constitutional Law, at page 528, observes that the phrase "jeopardy of life or limb" indicates bat the immunity is restricted to crimes of the highest grade, and this is the way Black stone states the rule : " Yet, by a gradual process of liberal construction the courts have extended the scope of the clause to make it applicable to all indictable offences, including misdemeanours.". . " Under the United States rule, to be put in jeopardy there must be a valid indictment or information duty presented to a court of competent jurisdiction, there must be an arraignment and plea, and a lawful jury must be impanelled and sworn.
It is not necessary to have a verdict.
The protection is not against a second punishment but against the peril in which he is placed by the jeopardy mentioned.
" These were the materials which formed the background of the guarantee of fundamental right given in article 20(2).
It incorporated within its scope the plea of "autrefois convict" as known to the British jurisprudence or the plea of double jeopardy as known to the American Constitution but circumscribed it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.
The 'words "before a court of law or judicial tribunal" are not to be found in article 90(2).
But if regard be had to the whole background indicated above it is clear that in order that the protection of article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal,required by law to decide the matters in con troversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or ail administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath.
The very wording of article 20 and the words used therein:" convicted commission of 739 the act charged as an offence", "be subjected to a penalty ", " commission of the offence ", " prosecuted and punished ", " accused of any offence ", would indicate, that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.
The tests of a judicial tribunal were laid down by this Court in Bharat Bank Ltd., Delhi vs Employees of the Bharat Bank Ltd., Delhi(1) in the following passage quoted with approval by Mahajan and Mukherjea JJ.
from Cooper vs Wilson '(2) at page 340: "A true judicial decision presupposes an existing dispute between two or more parties and then involves four requisites : (1) The presentation (not necessarily orally) of their case by the parties to the dispute; (2) If the dispute between them is a question of fact, the ascertaiment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence; (3) If the dispute between them is a question of law, the submission of legal argument by the parties; and (4) A decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.
" The question whether the Sea Customs Authorities when they entertained proceedings for confiscation of the gold in question acted as a judicial tribunal has got to be determined in accordance with the above tests.
The , 'was enacted to consolidate and amend the law relating to the levy of sea customs duties.
The hierarchy of the officials are the (1) ; , (2) 96 740 Customs Collector, who is the officer of Customs for the time being in separate charge of a custom house, the Chief Customs Officer who is the Chief Executive Officer of the Sea Customs for a port and the Chief Customs Authority which is the Central Board of Revenue.
Sections 18 and 19 enact prohibitions.
and restrictions on importation and exportation of goods and section 19(a) provides for detention and confiscation of goods whose importation is prohibited.
After making various provisions for the levy of sea customs duties, Chapter XVI enacts offences and penalties and several offences mentioned in the first column of the schedule to section 167 are made punishable with penalties mentioned in the third column thereof.
Item 8 relates to the offence committed by the importation of goods contrary to the prohibition or restriction imposed in that behalf under sections 18 and 19 of the Act and penalty prescribed for such an offence is: " Such goods shall be liable to confiscation ; any person concerned in any such offence shall be liable to a penalty not exceeding three.
times the value of the goods, or not exceeding one thousand rupees.
" Chapter XVII prescribes the procedure relating to offences, appeals, etc.
Powers of search are given to the officers of customs but provision is made that a person about to be searched can, require the officer to take him previous to search before the nearest Magistrate or Customs Collector.
Search warrant can only be issued by the Magistrate and can be executed in the same way and has the same effect as a search warrant issued under a law relating to criminal procedure.
Powers are also given to the officers of Customs to arrest persons reasonably suspected of having committed an offence under the Act but the person arrested is to be forthwith taken before the nearest Magistrate or Customs Collector.
The Magistrate is entitled either to commit such person to jail or order him to be kept in custody of the police for such time as is necessary to enable the Magistrate to communicate with the proper officers of Customs.
No 741 such power is given to the Customs Collector.
Section 181(A) also provides for the detention of packages containing certain publications imported into the States.
Section 182 provides that except in the case of certain offences therein mentioned which involve proceedings before a Magistrate confiscation, increased rate of duty or penalty can be adjudged by the Customs Authorities therein mentioned and section 183 provides for option to be given to the owner of the goods confiscated to pay in lieu of confiscation such fine as the officer thinks fit, Section 186 provides that the award of any confiscation, penalty or increased rate of duty under the Act by an officer of Customs is not to prevent the infliction of any punishment to which the person affected thereby is liable under any other law.
An appeal is provided under section 188 from a decision or order of the officer of Customs to the Chief Customs Authority who is thereupon to make such further enquiry and pass such order as he thinks fit confirming, altering or annulling the decision or order appealed against.
Section 191 provides for a revision by the Central Government on the application of a person aggrieved by any decision or order passed by an officer of Customs or the Chief Customs Authority from which no appeal lies.
Section 193 provides for the enforcement of the payment of penalty or increased rate of duty as adjudged against any person by an officer of Customs.
If such officer is not able to realise the unpaid amount from other goods in charge he can notify in writing to any Magistrate within the local limits of whose jurisdiction such person may be, his name and residence and the amount of penalty or increased rate of duty unrecovered and such Magistrate is thereupon to proceed to enforce payment of the said amount in like manner as if such penalty or increased rate had been a fine inflicted by himself.
It is clear on a perusal of the above provisions that the powers of search, arrest and detention are given to the Customs Authorities for the levy of sea customs duties and provision is made at the same time for a 742 reference to the Magistrate in all cases where search warrants are needed and detention of the arrested person is required.
Certain offences of a serious nature are to be tried only by Magistrates who are the only authorities who can inflict punishments by way of imprisonment.
Even though the customs officers are invested with the power of adjudging confiscation, increased rates of duty or penalty the highest penalty which can be inflicted is Rs. 1,000.
Confiscation is no about one of the penalties which the Customs Authorities can impose but that is more in the nature of proceedings in rem than proceedings in personam, the object being to confiscate the offending goods which have been dealt with contrary to the provisions of the law and in respect of the confiscation also an option is given to the owner of the goods to pay in lieu of confiscation such fine as the officer thinks fit.
All this is for the enforcement of the levy of and safeguarding the recovery of the customs duties.
There is no procedure prescribed to be followed by the Customs Officer in the matter of such ad judication and the proceedings before the Customs Officers are not assimilated in any manner whatever to proceedings in courts of law according to the provisions of the Civil or the Criminal procedure Code.
The Customs Officers are not required to act judicially on legal evidence tendered on oath and they are not authorised to administer oath to any witness.
The appeals, if any, lie before the Chief Customs Authority which is the Central Board of Revenue and the power of revision is given to the Central Government which certainly is not a judicial authority.
In the matter of the enforcement of the payment of penalty or increased rate of duty also the Customs Officer can only proceed against other goods of the party in the possession of the Customs Authorities.
But if such penalty orincreased rate of duty cannot be realised therefrom the only thing which he, can do is to notify the matter to the appropriate Magistrate who is the only person empowered to enforce payment as if such penalty or 743 increased rate of duty had been a fine inflicted by himself.
The process of recovery can be issued only by the Magistrate and not by the Customs Authority.
All these provisions go to show that far from being authorities bound by any rules of evidence or procedure established by law and invested with power to enforce their own judgments or orders the Sea Customs Authorities are merely constituted administrative machinery for the purpose of adjudging confiscation, increased rates of duty and penalty prescribed in the Act.
The same view of the functions and powers of Sea Customs Officers was expressed in& decision of the Bombay High Court to which our attention was called.
(See Mahadev Ganesh Jamsandekar vs The Secretary of State for India in Council(1).
We are of the opinion that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the do not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of supporting a plea of double jeopardy.
It therefore follows that when the Customs Authorities confiscated the gold in question neither the proceedings taken before the Sea Customs Authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a court or judicial tribunal on the appellant.
The appellant could not be said by reason of these proceedings before the Sea Customs Authorities to have been "Prosecuted and punished" for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay, in the complaint which was filed against him under section 23 of the Foreign Exchange Regulation Act.
The result therefore is that the appeal fails and must be dismissed.
Petitions Nos. 170, 171 and 172 of 1961.
(1) (1922) L.L.R. 46 Bom.
By an order of this Court dated the 26th November, 1952 these petitions were ordered to be heard by the Constitution Beach along with Criminal Appeal No. 81 of 1952, as the same point as regards "autrefois convict" or "double jeopardy" was also ' involved therein.
Jagjit Singh, Vidya Rattan and Parma Nand, the three petitioners in the respective petitions were detenus under the , detained in the Central Jail, Ferozepur, and governed by the Punjab Communist Detenus Rules, 1950, framed by the Government of Punjab under section 4(a) of the Act.
On the 6th February, 1950, it is alleged, a general assault on jail officials was made by the detenus including Jagjit Singh.
An alarm was rung and the warder guard after some time overpowered the detenus who were responsible for the assault.
Thirteen jail officials and twelve detenus sustained injuries and the detenus were all removed to cells.
On the 7th February, 1950, the three detenus petitioners resorted to a hunger strike which continued upto the 10th April, 1950.
They were separately confined from and after the 6th February, 1950.
Their letters and interviews were stopped for two months with effect from the 7th February, 1950, and papers and books were stopped with effect from the 8th February, 1950, for the duration of the hunger strike.
The hunger strike continued and they continued to be separately confined till the 10th April, 1960.
It appears that more than 7 1/2 months after the hunger strike the Jail Superintendent, Shri K. K. Matta, filed a complaint against Jagjit Singh in the Court of Shri P. L. Sondhi, M.T.C.,Ferozepur, under rule 41(2) of the Punjab Communist Detenus Rules charging him with having committed a jail offence in resorting to hunger strike.
He also filed a complaint before the same Magistrate against Jagjit Singh for having committed offences under sections 332 and 353 and sections 147 and 149 of the Indian Penal Code.
He further filed against Vidya Rattan and Parma Nand complaints under rule 41 (2) of the Punjab Communist Detenus Rules for having committed 745 a jail offence in resorting to hunger strike.
On the 16th February, 1951, the three detenu petitioners,, filed before this Court petitions under article 32 of the Constitution asking for the issue of a writ of prohibition not to proceed with the prosecutions of the petitioners in the said cases on the ground that they had been prosecuted and punished for the same offence already by the Jail Superintendent and therefore they could not be prosecuted and punished for the same offence once again and that the prosecutions which were launched against them in the, Court of Shri P. L. Sondhi, M.I.C., Ferozepur, could not lie as being in contravention of the fundamental right guaranteed under article 20(2) of the Constitution.
Jagjit Singh argued his own petition in person.
Vidya Rattan had intimated to this Court that he would be satisfied with the decision on Jagjit Singh 's petition and wanted his absence to be excused.
Parma Nand did not appear at the hearing even though notice of the hearing was served upon him.
It was urged by Jagjit Singh that the proceedings which were adopted by the Jail Superintendent against the petitioners amounted to their prosecution and punishment for the same offence and that therefore the prosecution which was now launched against them was not competent as it exposed them to double jeopardy and violated the fundamental right guaranteed to them under article 20(2).
It was on the other hand urged by the Advocate General of Punjab that the Jail Superintendent merely took disciplinary action against the petitioners and the punishment if any which was meted out to them was for breaches of discipline within the meaning of section 4(a) of the Act and the Punjab Communist Detenus Rules, 1950, framed thereunder, that there was no prosecution and punishment of the petitioners within the meaning of article 20(2) and that therefore the petitions were liable to be dismissed.
Section 4 of the (Act No. IV of 1960), provides for power to regulate place and conditions of detention, 746 "Every person in respect of whom a detention order has been made shall be liable (a) to be detained in such place and under such conditions, including conditions as to maintenance, discipline and punishment for breaches of discipline, as the appropriate Government may, by general or special order, specify The Punjab Communist Detenus Rules, 1950, were framed by the Government of Punjab in exercise of the powers conferred by section 4 (a) of the Act.
Rules 39, 40 and 41 provide for offences and punishments.
Rule 39 lays down certain rules of discipline and rule 40 provides that any detenu who contravenes any of the provisions of rule 39 or refuses to obey any order issued thereunder, or does any of the acts mentioned in the following portion of the rule 40, viz. : (i) assaults, insults, threatens or obstructs any fellow prisoner, any officer of the jail or any other Government servant, or any person employed in or visiting the jail, or. . (xii a) goes on hunger strike (other than a token strike), or. shall be deemed to have committed a jail off once.
Rule 41 is important and bears particularly on the question which we have to decide.
It provides:" (1) Where upon such enquiry as he thinks fit to make, the Superintendent is satisfied that a detenu is guilty of a jail offence, he may award the detenu one or more of the following punishments: (a) confinement in cells for a period not exceeding 14 days (d) cancellation or reduction, for a period not exceeding two months of the privilege of writing and receiving letters or of receiving newspapers an books, (e) cancellation or reduction, for a period not exceeding two months of the privilege of having interviews 747 (2) If any detenu is guilty of a jail offence which by reason of his having frequently committed such A offences or otherwise is in the opinion of the Superintendent not adequately punishable by him under the provisions of sub rule (1), he may forward such detenu to the Court of a Magistrate of the first class having jurisdiction, and such Magistrate shall thereupon inquire into and try the charge so brought against the detenu and upon conviction shall sentence him to imprisonment for a term not exceeding one year: Provided that where the act constituting the offence ' constitutes an offence punishable under the Indian Penal Code with imprisonment for a term exceeding one year, nothing in this rule shall preclude the detenu from being tried and sentenced for such offence in accordance with the provisions of the Indian Penal Code.
" It is clear from the above rules that the Jail Super intendent is constituted the authority for determining whether a detenu is guilty of a jail offence and for the award to such a detenu of one or more of the punishments prescribed in rule 41.
If this punishment is considered to be adequate the Jail Superintendent is to award him the appropriate punishment.
No procedure is prescribed by the rules and the Superintendent is not required to act only on evidence given on oath.
He can punish after such enquiry as he thinks fit to make.
Thus he may not take any evidence or make any judicial enquiry at all but may yet punish.
If however the detenu cannot in the opinion of the Jail Superintendent be adequately punished by him by reason of his having frequently committed such offence or otherwise the Jail Superintendent is empowered to forward such a detenu to the Court of a Magistrate of the First Class having jurisdiction and the jail offence in that case can be enquired into by the Magistrate who would try the charge brought against the detenu, convict him and sentence him to imprisonment for a term not exceeding one year.
The proviso covers the cases where the offence is Punishable with imprisonment for a term exceeding 97 748 one year under the Indian Penal Code and nothing in rule 41 is to preclude the detenu from being tried and sentenced for such offence in accordance with the provisions of the Indian Penal Code.
The whole scheme of rule 41 is to constitute the Jail superintendent only an administrative authority to maintain jail discipline and inflict summary punishment on the detenus for breach of that discipline by committing a jail offence.
It is only when the Jail Superintendent considers that the offence is not adequately punishable by him that he, can send the case to the Magis trate.
If he actually himself punishes he cannot, under this rule, refer the case again to the Magistrate.
A reference by him after punishment it will be wholly unauthorised and without jurisdiction and the prosecution before the Magistrate would be illegal and not in accordance with procedure established by law.
It was contended that under sections 45, 46 and 52 of the Prisons Act (IX of 1894) the Jail Superintendent was constituted an authority bound to act judicially for the purposes of enquiry into and trial of the prisoners for similar offences and the detenus under the Punjab Communist Detenus Rules, 1950, being put in the same category as civil prisoners the proceedings before the Jail Superintendent for having committed the Jail offences under rules 40 and 41 above amounted to a prosecution of the petitioners before him as a judicial tribunal.
It was on the other hand contended by the Advocate General of Punjab that the Punjab Communist Detenus Rules, 1950, constituted a self contained code regulating the place and conditions of detention of these detenus, that the aforesaid sections of the , had.
no application to their case and the proceedings which took place before the Jail Superintendent in the present case were therefore not judicial proceedings and there was no prosecution and punishment of the petitioners within the meaning of article 20 (2).
We accept the contention of the AdvocateGeneral of Punjab.
The petitioners were communist detenus and were governed by the Punjab Communist 749 Detenus Rules, 1950, which were framed by the Government of Punjab under section 4(a) of the set out above and which constituted the body of rules prescribing the conditions of their maintenance, discipline, etc.
Their confinement in the prisons was for the sake of administrative convenience and was also prescribed by the rules themselves and the provisions of the did not apply to them.
It could not therefore be validly contended that the proceedings taken against the petitioners by the Jail Superintendent constituted a prosecution and punishment of the petitioners before a judicial tribunal.
So far as the jail offence alleged to have been committed by reason of the petitioners having resorted to hunger strike was concerned, the Jail Superintendent obviously considered that he could adequately punish the petitioners for that jail offence and he did not think it necessary to have resort to the provisions of rule 41 (2) and forward the petitioners to the Court of the Magistrate without having himself dealt with them.
It is common ground that the Jail Superintendent acted under rule 41 (1), and having satisfied himself that the petitioners were guilty of that jail offence awarded them one or more of the punishments therein prescribed, viz., stopping the letters and interviews for two months with effect from the 7th February, 1950, and stopping the papers and books for the duration of the hunger strike.
In our opinion this was tantamount to inflicting punishment on all the three petitioners for this jail offence and that having been done it was not competent to the Jail Superintendent after 7 1/2 months of the hunger strike to forward the petitioners to the Court of the Magistrate as be purported to do, and such reference was wholly unauthorised by the rule and without jurisdiction and the prosecution before ' the Magistrate is obviously not in accordance with procedure established by law and the petitioners may well complain of a breach or a threatened breach of the fundamental right guaranteed to them by article 21 of the Constitution in that the prosecution of the 750 petitioners before the Magistrate for the jail offence of having resorted to the hunger strike was not competent according to the procedure established by law.
The Petitions Nos. 171 of 1951 and 172 of 1951 filed by Vidya Rattan and Parma Nand must ' therefore be accepted and their prosecution in the Court of Shri P. L. Soudhi, M.I.C., Ferozepur, under rule 41(2) of the Punjab Communist Detenus Rules, 1950, for having committed a jail offence in resorting to hunger strike must be quashed.
The same order will also be passed in the petition of Jagjit Singh, being Petition No. 170 of 1951, in regard to the jail offence committed by him by having resorted to the hunger strike.
Jagjit Singh however is being prosecuted in the Court of the Magistrate for having committed offences under sections 332 and 353 as also sections 147 and 149 of the Indian Penal Code.
It was contended by the Advocate General of Punjab that there was no prosecution and no punishment awarded to Jagjit Singh in regard to there offences; and he relied upon the entries in the punishment register under the date 6th February, 1950, with reference to these offences.
These entries in the punishment register show that Jagjit Singh was not punished for any of these offences but he was to be sent up for trial and in the meantime he was to be separately confined.
Jagjit Singh on the other hand relied in particular on the evidence of Sher Singh who was the Assistant Superintendent of the Central Jail, Ferozepur, at all material times and his evidence would have helped Jagjit Singh considerably had it not been for the fact that the entries in the punishment register completely belie his version and he further states that Jagjit Singh was punished not only for the offence of assault but also rioting which could in no event have been done by the Jail Superintendent under the rules.
So far as the prosecution under sections 147 and 149 of the Indian Penal Code is concerned that is an 751 offence which is not comprised in the jail offences enumerated in rule 40 nor could it have been dealt with by the Jail Superintendent under rule 41 (1).
That offence was moreover covered by the proviso to rule 41(2) and was exclusively triable by the Magistrate.
The prosecution of Jagjit Singh therefore before the Magistrate for the offences under sections 332 and 353 and sections 147 and 149 of the Indian Penal Code is not in violation of article 20 (2) or article 21 of the Constitution and must therefore proceed.
The result therefore is that the Petition No. 170 of 1961 filed by Jagjit Singh will be allowed only to the extent that the appropriate writ of prohibition shall issue against the respondent in regard to his prosecution for having committed a jail offence in resorting to hunger strike, but his prosecution under sections 332 and 353 and sections 147 and 149 of the Indian Penal Code will not be affected by this order.
The Petitions Nos. 171 of 1951 and 172 of 1951 filed by Vidya Rattan and Parma Nand respectively will be accepted and the appropriate writs of prohibition shall issue against the respondent as prayed for therein.
Appeal No. 81 dismissed.
Petitions Nos. 171 and 172 allowed.
Petition No. 170 partly allowed.
Agent for the appellant in Criminal Appeal No. 81: P. K. Chatterjee.
Agent for the respondent in Criminal Appeal No. 81 and Petitions Nos. 170, 171 & 172: G. K. Rajadhyaksha.

summary:
The wording of article 20 of the Constitution and the words used therein show that the proceedings therein contemplated are proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal and "prosecution" in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.
Where a person against whom proceedings had been taken by the Sea Customs Authorities under section 167 of the Sea Customs Act and an order for confiscation of goods had been passed was subsequently prosecuted before the Presidency Magistrate for an offence under section 23 of the Foreign Exchange Regulation Act in respect of the same act 731 Held, that the proceeding before the Sea Customs Authorities was not a "prosecution" and the order for confiscation was not a " punishments inflicted by a Court or Judicial Tribunal within the meaning of article 20(2) of the Constitution and the prosecution was not barred.
The detenus in a jail made a general assault on jail officials and some of those who were removed to the cells resorted to hunger strike; and they were separately confined and letters and interviews were stopped with regard to them by the Jail Superintendent.
Some months after the hunger strike the Jail Superintendent filed complaints against them before a Magistrate under r. 41 (2) of the Punjab Communist Detenus Rules for having committed a jail offence in resorting to hunger strike and for offences under sections 332 and 353 and 147 and 149 of the Indian Penal Code: Held, (i) that the datenus were governed by the Punjab Communist Detenus Rules and not the Prisons Act and the pro ceedings taken by the Jail Superintendent against the detenus did not constitute a prosecution and punishment within the meaning of article 20 (2) so as to prevent a subsequent prosecution for offences under the Indian Penal Code; (ii) the Jail Superintendent having taken action under r. 41 (1) for the hunger strike and punished the detenus with stoppage of letters etc.
it was not open to him to make a complaint against them again to the Magistrate for the same offence of having committed a jail offence by resorting to hunger strike.