Holding

Sections 5 and 6(3) of the Rajasthan Sati (Prevention) Act create distinct offences, so successive prosecutions under them do not violate Article 20(2).

Summary

The State of Rajasthan prosecuted Hat Singh and others under the Rajasthan Sati (Prevention) Act, 1987 for "glorification of Sati" (Section 5) and for contravention of a prohibitory order issued by the Collector (Section 6(3)). The High Court held that once a prohibitory order was issued, Section 5 merged into Section 6 and, because the order was not published in the Official Gazette, quashed all prosecutions. On appeal, the Supreme Court examined whether successive prosecutions under Sections 5 and 6(3) violated Article 20(2) of the Constitution’s double jeopardy clause. It held that the two provisions create distinct offences with different ingredients, so a later prosecution under Section 5 does not infringe Article 20(2) even if a prior prosecution under Section 6(3) occurred. The Court also rejected the High Court’s view that Section 5 ceases to apply after a prohibitory order and clarified that the order’s publication requirement does not bar prosecution. Consequently, the appeals were allowed, the High Court judgment was set aside, and the prosecutions were directed to proceed.

Issues considered

Whether prosecution under both Section 5 and Section 6(3) of the Rajasthan Sati (Prevention) Act amounts to double jeopardy under Article 20(2) of the Constitution.
Whether Section 5 ceases to apply once a prohibitory order under Section 6(1) or 6(2) is issued.
Whether the prohibitory order needed to be published in the Official Gazette to be enforceable.
Constitutionality of Section 19 of the Act (not finally decided).

Legislation cited

Subjects

double jeopardyArticle 20(2)Rajasthan Sati (Prevention) Actglorification of Satiprohibitory orderdistinct offencespreventive legislationcriminal law

Judgment

A STATE OF RAJASTHAN
v. 1:·
HAT SINGH AND ORS.

JANUARY 8, 2003

B [R.C. LAHOTI AND BRIJESH KUMAR, JJ.]

71_
Rajasthan Sati (Prevention) Act, 1987-Sections 5 and 6(1)(2) and (3)-
Prosecution under both the provisions-Whether violative of Article 20(2) of
the Constitution-Held, not violative, since ingredients of both the provisions
c are not same and they are distinct offences-Applicability of Article 20(2) is
attracted when second prosecution is for same offence-Subsequent trial or
prosecution are not barred if the ingredients of two offences are distinct- ,)..--
Constitution of India, 1950-Article 20(2)---General Clauses Act, 1897-Section
26-Code of Criminal Procedure, 1973-Section 300-Penal Code, 1860-
D Section 71.

Words and Phrases-"glorification"-Meaning of in the context of
Section 6 of Rajasthan Sati (Prevention) Act, 1987. .....
Respondent-accused were arrested and cases u/s 6(3) of Rajasthan ~

E Sati (Prevention) Ordinance, 1987 and also u/s 5 of the Ordinance were
registered against them. Respondents filed petitions from jail which were
treated as writ petitions and petitions u/s 482 Cr.P.C. challenging the
constitutional validity of several provisions of the Ordinance (which was
later replaced by Rajasthan Sati (Prevention) Act, 1987). High Court
upheld the constitutional validity of the Act, excepting Section 19. It found
F that provisions of Sections 5 and 6 of the Act were overlapping; once order
u/s 6(2) was issued provisions of Section 5 merge into the provisions of
J
Section 6 and thereafter a person can be held liable for commission of
offence only by reference to Section 6(3). However, all the prosecutions
were directed to be quashed in as much as the prohibitory order of
Collector was not published in accordance with law.
G
In appeal to this Court appellant contended that High Court was
not right to hold that once prohibitory order u/s 6(1) and (2) was made,
section 5 ceased to apply.

Allowing the appeals, the Court
H 38
STATE OF RAJASTHAN v. HAT SINGH 39
HELD: I. The ingredients of the offences contemplated by Section A
-)
5 and Section 6(3) are not the same nor they necessarily ar.d in all cases
overlap nor the prosecution and punishment for the offences under Section
5 and 6(3) - both, are violative of Article 20(2) of the Constitution or of
the rule againsl double jeopardy. [47-D-E]

2. In a given case, same set of facts may give rise to an offence B
punishable under Section 5 and Section 6(3) both. There is nothing
unconstitutional or illegal about it. So also an act which is alleged to be
an offence under Section 6(3) of the Act and if for any reason prosecution
u/s 6(3) does not end in conviction, if the ingredients of offence under
Section 5 are made out, may still be liable to be punished under Section 5 C
of the Act. Therefore, it cannot be said that once a prohibitory order under
sub-section (I) or (2) has been issued, then a criminal act done after the
promulgation of the prohibitory order can be punished only under Section
j
6(3) and in spite of prosecution u/s 6(3) failing, on the same set of facts
the person proceeded against cannot be held punishable u/s S of the Act
although the ingredients of Section S are fully made out. [47-F-H] D
3. To attract applicability of Article 20(2) there must be a second
prosecution and punishment for the same oft.nee for which the accused
has been prosecuted and punished previously. A subsequent trial or a
prosecution and punishment are not barred if the ingredients of the two
offences are distinct. [44-F] E
4. The rule against double jeopardy is stated in the maxim nemo debet
bis vexari pro una et eadem causa. it is a significant basic rule of Criminal
Law that no man shall be put in jeopardy twice for one and the same
offence. The rule provides foundation for the pleas of autrefois acquit and F
autrefois convict. The manifestation of this rule is to be found contained
in Section 26 of the General Clauses Act, 1897, Section 300 of the Code of
Criminal Procedure, 1973 and Section 71 of the Indian Penal Code.
[44-G, H]

S. The offences u/s 5, under Section 6(1) r/w Section 6(3) and Section G
6(2) r/w Section 6(3) are three distinct offences. They are not the same
offences. While Section S makes the commission of an act an offence and
·...---. punishes the same, the provisions of Section 6 are preventive in nature
and make provision for punishing contravention of prohibitory order so
as to make the prevention effective. The legislature in its wisdom thought
fit to enact Section 5, worded very widely, contemplating cognizance post H
40 SUPREME COURT REPORTS [2003] l S.C.R.

A happening and also enact Section 6 which aims at prevention in
anticipation of happening. The object sought to b e achieved by enacting +
Section 6 is to empower the Collector and District Magistrate to take
preventive action by prohibiting certain acts and enable cognizance being
taken and prosecution being launched even before commission of sati or
B glorification of sati has actually taken place. Thus the sense, import and
content of the offence u/s 5 are different from the one under Section 6(3).
146-C-D, ff; 47-A-B]

Maqbul Hussain v. State of Bombay, AIR (1953) SC 325; State of
Bombay v. S.L. Apte & Anr., AIR (1961) SC 578; Om Prakash Gupta v. State
C of U.P., AIR (1957) SC 458; The State of Madhya Pradesh v. Veereshwar
Rao, AIR (1957) SC 592 and Roshan Lal and Ors. v. State of Punjab, AIR
(1965) SC 1413, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
671-78 of 1987.
D
From the Judgment and Order dated 1.12.1987 of the High Court in
Rajasthan, in D.B.H.C.P. Nos. 290 I, 2903, 3126 of 1987 and D.B. Cr!. M.P.
Nos. 781, 782, 784, 792 & 976 of 1987.

B.D. Sharma, Nrottam Vyas and S.N. Tewari for the Appellant.
E
P.S. Sharma, Mrs. Nidhi Pandey and Shiv Pujan Singh for the
Respondent.

l1he Judgment of the Court was delivered by

R.C. LAHOTI, J. The Rajasthan Sati (Prevention) Ordinance 1987
F
was promulgated by tne Governor of Rajasthan on Ol.10.1987. The following
Sectior.s of the Ordinance are relevant for our purpose and hence are extracted
and reproduced hereunder :-

2(b). "glorification", in relation to Sati, includes, among other things,
G the observance of any ceremony or the taking out of a procession
in connection with the Sati or the creation of a trust or the
collection of funds or the construction of a temple with a view Y-
to perpetuating the honour of, or to preserve the memory of the
person committing Sati.

H 2(c). Sati means the burning or burying aiive of any widow alongwith
STATE OF RAJASTHAN v. HAT SINGH [R.C. LAHOTI, J.] 41

the body of her deceased husband or with any article, object or A
thing associated with the husband, irrespective of whether such
+ burring is voluntary on the part of the widow or otherwise.
5. Punishment for glorification of Sati Whoever does any act for
the glorification of Sati shall be punishable with imprisonment
for a term which shall not be less than one year but which may B
extend to seven years and with fine which shall not be less than
j five thousand rupees but which may extend to thirty thousand
rupees.
Part III
Power of Collector and District Magistrate to c
prevent offences relating to Sati

6. Power to prohibit certain acts ( l) Where the collector and District
~
Magistrate is of the opinion that Sati is being or is about to be
committed in any area, he may, by order, prohibit the doing of
any act towards the commission of Sati in such areas and for D
such period as may be specified in the order.

(2) The Collector and District Magistrate may also, by order,

- prohibit the glorification in any manner of the commission of
sati by any person in any area or areas specified in the Order.

(3) Whoever contravenes any order made under sub-sec (l) or
sub-sec (2) shall, if such contravention is not punishable under
E

any other provisions of this Ordinance, be punishable with
imprisonment for a term which shall not be less than one year
but which may extend to seven years and with tine which shall

I
not be less than five thousand rupees but which may extend to F
A thirty thousand rupees.

19. Removal of doubts-For the removal of doubts, it is hereby
declared that nothing in this Ordinance shall affect any temple
constructed for the glorification of Sati and in existence
immediately before the commencement of this Ordinance or the G
continuance of any ceremonies in such temple in connection
-., with such Sati.

The Ordinance was replaced by the Rajasthan Sati (Prevention) Act
1987 which received the assent of the President on 26th November, 1987.
Sub-Section (3) of Section I provides that it shall be deemed to have come H
42 SUPREME COURT REPORTS [2003] 1 S.C.R.

A into force on 1st October 1987. The relevant provisions of the Act with
which we are concerned remain the same as they were in the Ordinance +
excepting that the word 'Act' has been replaced for the word 'Ordinance'
wherever it occurs.

In exercise of the powers conferred by Section 6(2) of the Ordinance,
B the Collector and District Magistrate, Jaipur issued the following order on 6th
October 1987 :-

"In exercise of powers vested in me vide Section 6(2) of the Rajasthan
Sati (Prevention) Ordinance, 1987, I, J.N. Gaur, Collector & District
Magistrate, District: Jaipur, Jaipur do hereby prohibit with immediate
C effect, the glorification of the commission of Sati in any manner in
District Jaipur, by any person or Association of persons.

Issued on the 6th day of October 1987 under my hand and seal of my .....
'
office.
(J.N. Gaur)
D (Collector & District Magistrate)
Jaipur"
The Ordinance does not require the order of the Collector issued under
Section 6(2) of the Ordinance to be published in the official gazette so as to
~-
be effective. Undisputedly, the order was not published in the official gazette.
E The manner in which the order was publicized can best be demonstrated by
quoting from the judgment of the High Court :-

311 ..... the Collector's order dated 06.10.1987 relating to Rajasthan
Sati (Prevention) Ordinance, 1987 had been sent in the form of a
press note for publication in local news papers on 07.10.1987. This
F news was published in Rajasthan Patrika, Rastra .Doot, Nav Bharat J_
Times, Nav Jyoti and some other newspapers on 07 .10.1987. In
addition to this, the news was broadcast by the Jaipur Station of All
India Radio on 07.10.1987. That the Collector's order dated 06.10.1987
was broadcast by Jaipur Station of All India Radio on 07 .10.1987 in
G Hindi at 7.10 PM and 8.05 in Rajasthan by Smt. Ujjwala and Shri
Ved Vyas respectively is stated in a letter produced on 06.11.1987.
_,_-
Three incidents took place leading to the registration of three offences
pursuant to the FIRs recorded and registered at local police stations. On
08.10.1987, a mass rally was organised which, according to the prosecution,
H contravened the prohibitory order issued by the Collector. FIR No. 270/87
STATE OF RAJASTHANv. HAT SINGH[R.C. LAHOTI, J.] 43

was registered at Police Station Moti Doongri, Jaipur u/s 6(3) of the Ordinance A
in which Section 5 was also added later. On 20.10.1987, Hindi Dharam
Raksha Samiti , Kotputli Branch, contravened the prohibitory order of the
Collector at Kotputli. FIR No. 238/87 was registered at Police Station Kotputli.
On 28.10.1987, Dharam Raksha Samiti demonstrated against the Ordinance
and thereby contravened the Collector's prohibitory order. In that regard FIR B
No. 451/87 was registered on 30.10.1987 at Police Station Manakchowk.
Several accused persons were arrested and investigation commenced. Some
of the persons filed petitions from jail, which were treated by the High Court
as petitions seeking the writ of Habeas Corpus. A few petitions were filed u/
s 482 CrPC seeking quashing of the prosecution. All these petitions were
taken up for consolidated hearing. Challenge was laid to the vires of the C
several provisions of the Ordinance and the Division Bench of the High
Court was persuaded to examine the constitutional validity thereof, later
replaced by and included in the Act. The cases before the Division .Bench
were argued from very many angles. For our purpose, it would suffice to sum
up the following relevant findings :-
D
(I) Barring Section 19, the.Ordinance and the Act are perfectly legal
and constitutional.
(2) Section 19 of the Ordinance and the Act are unconstitutional and
declared void and struck down.
(3) The Ordinance and the Act are not violative of the freedom of E
religion under Articles 25 and 26 of the Constitution.
(4) The prohibitory order issued by the Collector on 06.10.1987,
was not duly published. If the prohibitory order would have been
published in the Official Gazette, it would have amounted to
publication. However, the Ordinance or the Act does not insist F
I
), on such publication. It could have been published in a manner
other than by way of publication in the Official Gazette. 'The
evidence that has been produced before the High Court goes to
show that although radio bulletins broadcast and newspapers
carried news about some prohibitory order having been issued G
by the Collector, the fact remains that the prohibitory order of
the Collector was not as such published in any of the newspapers
- .- nor read out in the news bulletins. Therefore, the prohibitory
order cannot be said to have been promulgated. In the opinion of
the High Court, in the absence of the prohibitory order dated
06.10.1987 having been published in accordance with law, the H
44 SUPREME COURT REPORTS [2003] I S.C.R.

A same could not have been enforced and no one could be
prosecuted for the alleged defiance or violation of the prohibitory
order issued by the Collector.

Yet another important finding arrived at by the High Court is that the
provisions of Sections 5 & 6 are overlapping. Both the provisions aim at
B declaring glorification of Sati as an offence making the same punishable with
imprisonment. Once a prohibitory order has been issued u/s 6(2), the provisions
of Section 5 merge into the provisions of Section 6 and thereafter a person
can be held liable for commission of an offence only by reference to sub-
section (3) of Section 6 as having contravened an order made either under
C sub-section (I) or sub-section (2). Inasmuch as, in the opinion of the High
Court, the prohibitory order of the Collector was not published in accordance
with law, the prosecution u/s 6(3) was not maintainable, and, therefore, could
not be proceeded with. All the prosecutions were, therefore, directed to be
quashed.

D Before this Court none of the parties has made.any submissions regarding
the constitutional validity of Section 19 of the Act and, therefore, we are not
called upon to exlJress any opinion thereon. The only submission made before
this court on behalf of the appellant State was that the High Court was not
right in forming an opinion that Sections 5 and 6 are overlapping and, therefore,
once a prohibitory order has been made by the Collector under sub-section
E (I) or (2) of Section 6, then Section 5 ceases to apply. We find force in the
submission of the learned counsel for the State.

Article 20 (2) of the Constitution provides that no person shall be
prosecuted and punished for the same offence more than once. To attract
F applicability of Article 20(2) there must be a second prosecution and
punishment for the same offence for which the accused has been prosecuted
and punished previously. A subsequent trial or a prosecution and punishment J..
are not barred if the ingredients of the two offences are distinct.

The rule against double jeopardy is stated in the maxim nemo debet bis
G vexari pro una et eadem causa. It is a significant basic rule of Criminal Law
that no man shall be put in jeopardy twice for one and the same offence. The
rule provides foundation for the pleas of autrefois acquit and autrefois convict.
The manifestation of this rule is to be found contained in Section 26 of the • --
General Clauses Act, 1897, Section 300 of the Code of Criminal Procedure,
1973 and Section 71 of the Indian Penal Code. Section 26 of the General
H Clauses Act provides "Where an act or omission constitutes an offence under
STATE OF RAJASTHAN v. HAT SINGH [R.C. LAHOTI, J.] 45

two or more enactments, then the offender shall be liable to be prosecuted A
and punished under either or any of those enactments, but shall not be liable
-)
to be punished twice for the same offence (emphasis supplied)." Section 300
of the Cr PC provides, inter alia,-" A person who has once 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 B
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 sub-section (I) of Section 221 or for which he
might have been convicted under sub-section (2) thereof (emphasis supplied)."
Both the provisions employ the expression "same offence".

Section 71 of !PC provides -
c
"Where anything which is an offence is made-up of parts, any of which
parts is itself an offence, the offender shall not be punished with the punishment
of more than one of such his offences, unless it be so expressly provided.
D
Where anything is an offence falling within two or more separate
definitions of any law in force for the time being by which offences are
defined or punished, or

where several acts, of which one or more than one would by itself or
themselves constitute an offence, constitute, when combined, a different E
offence,

the offender shall not be punished with a more severe punishment than
the Court which tries him could award for any one of such offences.

The leading Indian authority in which the rule against double jeopardy F
came to be dealt with and interpreted by reference to Article 20(2) of the
J..' Constitution is the Constitution Bench decision in Maqbul Hussain v. State
of Bombay, AIR (1953) SC 325. If the offences are distinct, there is no
question of the rule as to double jeopardy being extended and applied. In
State of Bombay v. S.L. Apte a~d Anr., AIR (I 961) SC 578, the Constitution
Bench held that the trial and conviction of the accused u/s 409 !PC did not G
bar the trial and conviction for an offence u/s 105 of Insurance Act because
the two were distinct offences constituted or made up of different ingredients
though the allegations in the two complaints made against the accused may
be substantially the same. In Om Prakash Gupta v. State of UP, AIR (1957)
SC 458 and The State of Madhya Pradesh v. Veereshwar Rao, AIR (1957) H
46 SUPREME COURT REPORTS [2003] 1 S.C.R.

A SC 592, it was held that prosecution and conviction or acquittal u/s 409 of
TPC do not debar the accused being tried on a charge u/s 5(2) of the Prevention
of Corruption Act, 194 7 because the two offences are not identical in sense, +
import and content. In Roshan Lal & Ors. v. State of Punjab, AIR (1965) SC
1413, the accused had caused disappearance of the evidence of two offences
u/s 330 and 348 IPC and, therefore, he was alleged to have committed two
B separate offences u/s 20 I IPC. It was held that neither Section 71 IPC nor
Section 26 of the General Clauses Act came to the rescue of the accused and
the accused was liable to be convicted for two sets of offences u/s 201 IPC
though it would be appropriate not to pass two separate sentences.

C The offences u/s 5, under Section 6(1) r/w Section 6(3) and Section
6(2) r/w Section 6(3) are three distinct offences. They are not the same
offences. This is clear from a bare reading of Sections 5 and 6. While Section
5 makes the commission of an act an offence and punishes the same; the
provisions of Section 6 are preventive in nature and make provision for
punishing contravention of prohibitory order so as to make the prevention
D effective. Commission of sati may or may not have taken place and may not
actually take place (after the issuance of prohibitory order), yet the prohibitory
order under sub-section (1) or (2) of Section 6 can be issued. Section 5
punishes "any act for the glorification of Sati". The words 'glorification' and
'sati' are both defined in the Act. What is prohibited by the Collector and
E District Magistrate u/s 6(1) is "any act towards the commission of Sati"
subject to his forming an opinion that Sati is being committed or is about to
be committed. The prohibition is against abetment of Sati or doing of any act,
which would aid or facilitate the commission of Sati. On such prohibitory
order being promulgated, its contravention would be punishable u/s 6(3)
without regard to the fact whether Sati is committed or not and whether such
F act amounts to glorification of Sati or not. Under Section 6(2), the Collector
and District Magistrate may prohibit "the glorification in any manner" of the
commission of Sati. The expression 'the glorification in any manner' carries
a wider connotation than the expression 'the glorification ofsati' as employed
in Section 5. In case of prosecution under Section 6(2) r/w Section 6(3), what
G would be punishable is such defiance or contravention of the order of the
Collector and District Magistrate, as has the effect of the glorification in any
manner of the commission of Sati. In distinction therewith, it is the actual
doing of an act for the glorification of Sati which is made punishablY'U/s 5.
·The Legislature in its wisdom thought fit to enact Section 5, worded very
widely, contemplating cognizance post happening and /also enact Section 6
H which aims at prevention in anticipation of happening. The object sought to
STATE OF RAJASTHAN v. HAT SINGH [R.C. LAHOTI, J.] 47

be achieved by enacting Section 6 is to empower the Collector and District A
Magistrate to take preventive action by prohibiting certain acts and enable
cognizance being taken and prosecution being launched even before
commission of sati or glorification of sati has actually taken place. Thus the
sense, import and content of the offence u/s 5 are different from the one
under Section 6(3).
B
The gist of the offence under Section S is the commission of an act,
which amounts to glorification of Sati. It is the commission of act by itself,
which is made punishable on account of the same having been declared and
defined as an offence by Section S of the Ordinance/Act. The gist of the
offence under Section 6 of the Ordinance/Act is the contravention of the C
prohibitory order issued by the Collector and District Magistrate. Section S
punishes the glorification of Sati. Section 6 punishes the contravention of
prohibitory order issued by the Collector and District Magistrate, which is a
punishment for the defiance of the lawful authority of the SMe to enforce
law and order in the society. What is punished under Section 5 is the criminal
intention for glorification of sati; what is punishable under Section 6 is the D
criminal intention to violate or defy the prohibitory order issued by the lawful
authority. We do not agree with the High Court that the ingredients of the
offences contemplated by Section S and Section 6(3) are the same or that
they necessarily and in all cases overlap or that prosecution and punishment
for the offences under Sections S and 6 (3) both are violative of Article 20(2) E
of the Constitution or of the rule against double jeopardy.

We are, therefore, of the opinion that in a given case, same set of facts
may give rise to an offence punishable under Section 5 and Section 6(3)
both. There is nothing unconstitutional or illegal about it. So also an act
which is alleged to be an offence under Section 6(3) of the Act and if for any p
reason prosecution u/s 6 (3) does not end in conviction, if the ingredients of
offence under Section 5 are made out, may still be liable to be punished
under Section S of the Act. We, therefore, do not agree with the High Court
to the extent to which it has been held that once a prohibitory order under
sub-section ( 1) or (2) has been issued, then a criminal act done after the
promulgation of the prohibitory order can be punished only under Section G
6(3) and in spite of prosecution uls 6(3) failing, on the same set of facts the
person proceeded against cannot be held punishable uls 5 of the Act although
the ingredients of Section 5 are fully made out

The appeals are allowed. The judgment of the High Court is set aside. H
48 SUPREME COURT REPORTS (2003] 1 S.C.R.

A The prosecution shall proceed against the accused persons consistently with
the observations made hereinabove. In view of the delay which has already
taken. place, it is directed that the trial court shall give precedence to the
present case and try to conclude the proceedings as expeditiously as possible
preferably within a period of six months from the date of first appearance of
B the accused persons before it pursuant to this order.

K.K.T. Appeals allowed.