of Rajasthan Vs. Hat Singh & Ors  Insc
11 (8 January 2003)
Lahoti & Brijesh Kumar. R.C. Lahoti, J.
Rajasthan Sati (Prevention) Ordinance 1987 was promulgated by the Governor of
Rajasthan on 01.10.1987. The following Sections of the Ordinance are relevant
for our purpose and hence are extracted and reproduced hereunder :-
"glorification", in relation to Sati, includes, among other things,
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 to perpetuating the honour of, or to
preserve the memory of the person committing Sati.
Sati means the burning or burying alive of any widow alongwith the body of her
deceased husband or with any article, object or thing associated with the
husband, irrespective of whether such burring is voluntary on the part of the
widow or otherwise.
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 extend to seven years and with fine which
shall not be less than five thousand rupees but which may extend to thirty
III Power of Collector and District Magistrate to prevent offences relating to
Power to prohibit certain acts
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 such
period as may be specified in the order.
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.
Whoever contravenes any order made under sub-sec (1) or sub-sec (2) shall, if
such contravention is not punishable under 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 fine which shall not
be less than five thousand rupees but which may extend to thirty thousand
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 continuance of any ceremonies in such temple in connection with such Sati.
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 1
provides that it shall be deemed to have come 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.
exercise of the powers conferred by Section 6(2) of the Ordinance, 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
effect, the glorification of the commission of Sati in any manner in District Jaipur,
by any person or Association of persons.
on the 6th day of October 1987 under my hand and seal of my office. (J.N. Gaur)
(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. 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 news was
published in Rajasthan Patrika, Rastra Doot, Nav Bharat 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 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.
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, contravened the
prohibitory order issued by the Collector. FIR No. 270/87 was registered at
Police Station Moti Doongri, Jaipur u/s 6(3) of the Ordinance 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
that regard FIR 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 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 :-
Barring Section 19, the Ordinance and the Act are perfectly legal and
Section 19 of the Ordinance and the Act are unconstitutional and declared void
and struck down.
The Ordinance and the Act are not violative of the freedom of religion under
Articles 25 and 26 of the Constitution.
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 on such publication. It could have been published in a
manner other than by way of publication in the Official Gazette.
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 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.
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 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.
another important finding arrived at by the High Court is that the provisions
of Sections 5 & 6 are overlapping. Both the provisions aim at 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 sub- section
(1) 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.
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 express 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 (1) or (2) of Section 6, then Section 5 ceases to apply. We find
force in the submission of the learned counsel for the State.
20 (2) of the Constitution provides that no person shall be prosecuted and
punished for the same offence more than once. To attract 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 are not barred if the
ingredients of the two offences are distinct.
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 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 Clauses Act
provides "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 (emphasis supplied)." Section 300 of
the CrPC 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 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 (1) 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".
71 of IPC provides "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
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 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.
leading Indian authority in which the rule against double jeopardy came to be
dealt with and interpreted by reference to Article 20(2) of the 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.
State of Bombay v. S.L. Apte & Another, AIR
1961 SC 578, the Constitution Bench held that the trial and conviction of the
accused u/s 409 IPC did not 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 SC 592, it was held that prosecution and conviction or acquittal
u/s 409 of IPC do not debar the accused being tried on a charge u/s 5(2) of the
Prevention of Corruption Act, 1947 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 separate offences u/s 201 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.
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
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
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 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 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 of sati' as employed in Section 5. In case of
prosecution under Section 6(2) r/w Section 6(3), what 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 punishable 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 which aims at prevention in
anticipation of happening. The object sought to be 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 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).
gist of the offence under Section 5 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 5 of the Ordinance/Act. The gist of the offence under
Section 6 of the Ordinance/Act is the contravention of the prohibitory order
issued by the Collector and District Magistrate. Section 5 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 State 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 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 5 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 5 and 6 (3) both are violative of Article 20(2) of the
Constitution or of the rule against double jeopardy.
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 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 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 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 5 of the Act although the ingredients of Section 5 are
fully made out.
appeals are allowed. The judgment of the High Court is set aside. 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 the accused persons
before it pursuant to this order.