{"id":122569,"date":"2003-01-08T00:00:00","date_gmt":"2003-01-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-vs-hat-singh-ors-on-8-january-2003"},"modified":"2018-01-28T14:50:07","modified_gmt":"2018-01-28T09:20:07","slug":"state-of-rajasthan-vs-hat-singh-ors-on-8-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-vs-hat-singh-ors-on-8-january-2003","title":{"rendered":"State Of Rajasthan vs Hat Singh & Ors on 8 January, 2003"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Rajasthan vs Hat Singh & Ors on 8 January, 2003<\/div>\n
Author: R Lahoti<\/div>\n
Bench: R.C. Lahoti, Brijesh Kumar.<\/div>\n
           CASE NO.:\nAppeal (crl.)  671-678 of 1987\n\nPETITIONER:\nState of Rajasthan\n\nRESPONDENT:\nHat Singh & Ors.\n\nDATE OF JUDGMENT: 08\/01\/2003\n\nBENCH:\nR.C. LAHOTI & BRIJESH KUMAR.\n\nJUDGMENT:\n<\/pre>\n
JUDGMENT<\/p>\n
R.C. Lahoti, J.\n<\/p>\n
\tThe Rajasthan Sati (Prevention) Ordinance 1987 was
\npromulgated by the Governor of Rajasthan on 01.10.1987.\t The
\nfollowing Sections of the Ordinance are relevant for our purpose and
\nhence are extracted and reproduced hereunder :-\n<\/p>\n
2(b).\t“glorification”, in relation to Sati, includes, among other things,
\nthe observance of any ceremony or the taking out of a
\nprocession in connection with the Sati or the creation of a trust
\nor the collection of funds or the construction of a temple with a
\nview to perpetuating the honour of, or to preserve the memory
\nof the person committing Sati.\n<\/p>\n
2(c).\tSati means the burning or burying alive of any widow
\nalongwith the body of her deceased husband or with any article,
\nobject or thing associated with the husband, irrespective of
\nwhether such burring is voluntary on the part of the widow or
\notherwise.\n<\/p>\n
5.\tPunishment for glorification of Sati  Whoever does any act for
\nthe glorification of Sati shall be punishable with imprisonment
\nfor a term which shall not be less than one year but which may
\nextend to seven years and with fine which shall not be less than
\nfive thousand rupees but which may extend to thirty thousand
\nrupees.\n<\/p>\n
Part  III
\nPower of Collector and District Magistrate to
\nprevent offences relating to Sati<\/p>\n
6.\tPower to prohibit certain acts\t(1) Where the collector and
\nDistrict Magistrate is of the opinion that Sati is being or is
\nabout to be committed in any area, he may, by order, prohibit
\nthe doing of any act towards the commission of Sati in such
\nareas and for such period as may be specified in the order.\n<\/p>\n
\t(2)\tThe Collector and District Magistrate may also, by order,
\nprohibit the glorification in any manner of the commission of
\nsati by any person in any area or areas specified in the Order.\n<\/p>\n
\t(3)\tWhoever contravenes any order made under sub-sec (1)
\nor sub-sec (2) shall, if such contravention is not punishable
\nunder any other provisions of this Ordinance, be punishable
\nwith imprisonment for a term which shall not be less than one
\nyear but which may extend to seven years and with fine which
\nshall not be less than five thousand rupees but which may
\nextend to thirty thousand rupees.\n<\/p>\n
19.\tRemoval of doubts  For the removal of doubts, it is hereby
\ndeclared that nothing in this Ordinance shall affect any temple
\nconstructed for the glorification of Sati and in existence
\nimmediately before the commencement of this Ordinance or the
\ncontinuance of any ceremonies in such temple in connection
\nwith such Sati.\n<\/p>\n
\tThe Ordinance was replaced by the Rajasthan Sati (Prevention)
\nAct 1987 which received the assent of the President on 26th
\nNovember, 1987.\t Sub-Section (3) of Section 1 provides that it shall
\nbe deemed to have come into force on 1st October 1987.\tThe relevant
\nprovisions of the Act with which we are concerned remain the same as
\nthey were in the Ordinance excepting that the word ‘Act’ has been
\nreplaced for the word ‘Ordinance’ wherever it occurs.\n<\/p>\n
\tIn exercise of the powers conferred by Section 6(2) of the
\nOrdinance, the Collector and District Magistrate, Jaipur issued the
\nfollowing order on 6th October 1987 :-\n<\/p>\n
 “In exercise of powers vested in me vide Section
\n6(2) of the Rajasthan Sati (Prevention) Ordinance,
\n1987, I, J.N. Gaur, Collector & District Magistrate,
\nDistrict: Jaipur, Jaipur do hereby prohibit with
\nimmediate effect, the glorification of the commission
\nof Sati in any manner in District Jaipur, by any
\nperson or Association of persons.\n<\/p>\n
\tIssued on the 6th day of October 1987 under my hand
\nand seal of my office.\n<\/p>\n
(J.N. Gaur)
\n(Collector & District Magistrate)
\nJaipur ”\n<\/p>\n
\tThe Ordinance does not require the order of the Collector
\nissued under Section 6(2) of the Ordinance to be published in the
\nofficial gazette so as to be effective.\t Undisputedly, the order was not
\npublished in the official gazette.  The manner in which the order was
\npublicized can best be demonstrated by quoting from the judgment of
\nthe High Court :-\n<\/p>\n
311.. the Collector’s order dated 06.10.1987 relating to
\nRajasthan Sati (Prevention) Ordinance, 1987 had been sent
\nin the form of a press note for publication in local news
\npapers on 07.10.1987.  This news was published in
\nRajasthan Patrika, Rastra Doot, Nav Bharat Times, Nav
\nJyoti and some other newspapers on 07.10.1987.\tIn
\naddition to this, the news was broadcast by the Jaipur
\nStation of All India Radio on 07.10.1987.  That the
\nCollector’s order dated 06.10.1987 was broadcast by Jaipur
\nStation of All India Radio on 07.10.1987 in Hindi at 7.10
\nPM and 8.05 in Rajasthan by Smt. Ujjwala and Shri Ved
\nVyas respectively is stated in a letter produced on
\n06.11.1987.\n<\/p>\n
\tThree incidents took place leading to the registration of three
\noffences pursuant to the FIRs recorded and registered at local police
\nstations.  On 08.10.1987, a mass rally was organised which, according
\nto the prosecution, contravened the prohibitory order issued by the
\nCollector.  FIR No. 270\/87 was registered at Police Station Moti
\nDoongri, Jaipur u\/s 6(3) of the Ordinance in which Section 5 was also
\nadded later.  On 20.10.1987, Hindi Dharam Raksha Samiti , Kotputli
\nBranch, contravened the prohibitory order of the Collector at Kotputli.
\nFIR No. 238\/87 was registered at Police Station Kotputli.  On
\n28.10.1987, Dharam Raksha Samiti demonstrated against the
\nOrdinance and thereby contravened the Collector’s prohibitory order.
\nIn that regard FIR No. 451\/87 was registered on 30.10.1987 at Police
\nStation Manakchowk.  Several accused persons were arrested and
\ninvestigation commenced.  Some of the persons filed petitions from
\njail, which were treated by the High Court as petitions seeking the
\nwrit of Habeas Corpus.\tA few petitions were filed u\/s 482 CrPC
\nseeking quashing of the prosecution.  All these petitions were taken up
\nfor consolidated hearing.  Challenge was laid to the vires of the
\nseveral provisions of the Ordinance and the Division Bench of the
\nHigh Court was persuaded to examine the constitutional validity
\nthereof, later replaced by and included in the Act.  The cases before
\nthe Division Bench were argued from very many angles.  For our
\npurpose, it would suffice to sum up the following relevant findings :-\n<\/p>\n
(1)\tBarring Section 19, the Ordinance and the Act are perfectly
\nlegal and constitutional.\n<\/p>\n
(2)\tSection 19 of the Ordinance and the Act are unconstitutional
\nand declared void and struck down.\n<\/p>\n
(3)\tThe Ordinance and the Act are not violative of the freedom of
\nreligion under Articles 25 and 26 of the Constitution.
\n(4)\tThe prohibitory order issued by the Collector on 06.10.1987,
\nwas not duly published.\t If the prohibitory order would have
\nbeen published in the Official Gazette, it would have amounted
\nto publication.\t However, the Ordinance or the Act does not
\ninsist on such publication.  It could have been published in a
\nmanner other than by way of publication in the Official Gazette.
\nThe evidence that has been produced before the High Court
\ngoes to show that although radio bulletins broadcast and
\nnewspapers carried news about some prohibitory order having
\nbeen issued by the Collector, the fact remains that the
\nprohibitory order of the Collector was not as such published in
\nany of the newspapers nor read out in the news bulletins.
\nTherefore, the prohibitory order cannot be said to have been
\npromulgated.  In the opinion of the High Court, in the absence
\nof the prohibitory order dated 06.10.1987 having been
\npublished in accordance with law, the same could not have been
\nenforced and no one could be prosecuted for the alleged
\ndefiance or violation of the prohibitory order issued by the
\nCollector.\n<\/p>\n
\tYet another important finding arrived at by the High Court is
\nthat the provisions of Sections 5 & 6 are overlapping.\tBoth the
\nprovisions aim at declaring glorification of Sati as an offence making
\nthe same punishable with imprisonment.\tOnce a prohibitory order has
\nbeen issued u\/s 6(2), the provisions of Section 5 merge into the
\nprovisions of Section 6 and thereafter a person can be held liable for
\ncommission of an offence only by reference to sub-section (3) of
\nSection 6 as having contravened an order made either under sub-
\nsection (1) or sub-section (2).\t Inasmuch as, in the opinion of the High
\nCourt, the prohibitory order of the Collector was not published in
\naccordance with law, the prosecution u\/s 6(3) was not maintainable,
\nand, therefore, could not be proceeded with.  All the prosecutions
\nwere, therefore, directed to be quashed.\n<\/p>\n
\tBefore this Court none of the parties has made any submissions
\nregarding the constitutional validity of Section 19 of the Act and,
\ntherefore, we are not called upon to express any opinion thereon.  The
\nonly submission made before this court on behalf of the appellant
\nState was that the High Court was not right in forming an opinion that
\nSections 5 and 6 are overlapping and, therefore, once a prohibitory
\norder has been made by the Collector under sub-section (1) or (2) of
\nSection 6, then Section 5 ceases to apply.  We find force in the
\nsubmission of the learned counsel for the State.\n<\/p>\n
Article 20 (2) of the Constitution provides that no person shall
\nbe prosecuted and punished for the same offence more than once.\t To
\nattract applicability of Article 20(2) there must be a second
\nprosecution and punishment for the same offence for which the
\naccused has been prosecuted and punished previously.   A subsequent
\ntrial or a prosecution and punishment are not barred if the ingredients
\nof the two offences are distinct.\n<\/p>\n
\tThe rule against double jeopardy is stated in the maxim nemo
\ndebet bis vexari pro una et eadem causa.  It is a significant basic rule
\nof Criminal Law that no man shall be put in jeopardy twice for one
\nand the same offence.  The rule provides foundation for the pleas of
\nautrefois acquit and autrefois convict.\t The manifestation of this rule
\nis to be found contained in Section 26 of the General Clauses Act,
\n1897, Section 300 of the Code of Criminal Procedure, 1973 and
\nSection 71 of the Indian Penal Code. Section 26 of the General
\nClauses Act provides  “Where an act or omission constitutes an
\noffence under two or more enactments, then the offender shall be
\nliable to be prosecuted and punished under either or any of those
\nenactments, but shall not be liable to be punished twice for the same
\noffence (emphasis supplied).”  Section 300 of the CrPC provides, inter
\nalia, – “A person who has once been tried by a court of competent
\njurisdiction for an offence and convicted or acquitted of such offence
\nshall, while such conviction or acquittal remains in force, not be liable
\nto be tried again for the same offence, nor on the same facts for any
\nother offence for which a different charge from the one made against
\nhim might have been made under sub-section (1) of Section 221 or for
\nwhich he might have been convicted under sub-section (2) thereof
\n(emphasis supplied).”  Both the provisions employ the expression
\n“same offence”.\n<\/p>\n
\tSection 71 of IPC provides
\n\t“Where anything which is an offence is made-up of parts, any
\nof which parts is itself an offence, the offender shall not be punished
\nwith the punishment of more than one of such his offences, unless it
\nbe so expressly provided.\n<\/p>\n
\tWhere anything is an offence falling within two or more
\nseparate definitions of any law in force for the time being by which
\noffences are defined or punished, or
\n\twhere several acts, of which one or more than one would by
\nitself or themselves constitute an offence, constitute, when combined,
\na different offence,
\n\tthe offender shall not be punished with a more severe
\npunishment than the Court which tries him could award for any one of
\nsuch offences.\n<\/p>\n
\tThe leading Indian authority in which the rule against double
\njeopardy came to be dealt with and interpreted by reference to Article
\n20(2) of the Constitution is the Constitution Bench decision in
\nMaqbul Hussain v. State of Bombay AIR 1953 SC 325.  If the
\noffences are distinct, there is no question of the rule as to double
\njeopardy being extended and applied.  In State of Bombay v. S.L.
\nApte & Another, AIR<\/a> 1961 SC 578, the Constitution Bench held that
\nthe trial and conviction of the accused u\/s 409 IPC did not bar the trial
\nand conviction for an offence u\/s 105 of Insurance Act because the
\ntwo were distinct offences constituted or made up of different
\ningredients though the allegations in the two complaints made against
\nthe accused may be substantially the same.  In Om Prakash Gupta v.
\nState of UP, AIR 1957 SC 458 and The State of Madhya Pradesh v.
\nVeereshwar Rao AIR<\/a> 1957 SC 592, it was held that prosecution and
\nconviction or acquittal u\/s 409 of IPC do not debar the accused being
\ntried on a charge u\/s 5(2) of the Prevention of Corruption Act, 1947
\nbecause the two offences are not identical in sense, import and
\ncontent.  In Roshan Lal & Ors. v. State of Punjab AIR 1965 SC
\n1413, the accused had caused disappearance of the evidence of two
\noffences u\/s 330 and 348 IPC and, therefore, he was alleged to have
\ncommitted two separate offences u\/s 201 IPC.  It was held that neither
\nSection 71 IPC nor Section 26 of the General Clauses Act came to the
\nrescue of the accused and the accused was liable to be convicted for
\ntwo sets of offences u\/s 201 IPC though it would be appropriate not to
\npass two separate sentences.\n<\/p>\n
\tThe offences u\/s 5, under Section 6(1) r\/w Section 6(3) and
\nSection 6(2) r\/w Section 6(3) are three distinct offences.  They are not
\nthe same offences.  This is clear from a bare reading of Sections 5 and\n<\/p>\n
6.   While Section 5 makes the commission of an act an offence and
\npunishes the same; the provisions of Section 6 are preventive in nature
\nand make provision for punishing contravention of prohibitory order
\nso as to make the prevention effective.\t Commission of sati may or
\nmay not have taken place and may not actually take place (after the
\nissuance of prohibitory order), yet the prohibitory order under sub-
\nsection (1) or (2) of Section 6 can be issued.\tSection 5 punishes “any
\nact for the glorification of Sati”.  The words ‘glorification’ and ‘sati’
\nare both defined in the Act.  What is prohibited by the Collector and
\nDistrict Magistrate u\/s 6(1) is “any act towards the commission of
\nSati” subject to his forming an opinion that Sati is being committed or
\nis about to be committed.  The prohibition is against abetment of Sati
\nor doing of any act, which would aid or facilitate the commission of
\nSati.  On such prohibitory order being promulgated, its contravention
\nwould be punishable u\/s 6(3) without regard to the fact whether Sati is
\ncommitted or not and whether such act amounts to glorification of
\nSati or not.  Under Section 6(2), the Collector and District Magistrate
\nmay prohibit “the glorification in any manner” of the commission of
\nSati.  The expression ‘the glorification in any manner’ carries a wider
\nconnotation than the expression ‘the glorification of sati’ as employed
\nin Section 5.  In case of prosecution under Section 6(2) r\/w Section
\n6(3), what would be punishable is such defiance or contravention of
\nthe order of the Collector and District Magistrate, as has the effect of
\nthe glorification in any manner of the commission of Sati.  In
\ndistinction therewith, it is the actual doing of an act for the
\nglorification of Sati which is made punishable u\/s 5.  The Legislature
\nin its wisdom thought fit to enact Section 5, worded very widely,
\ncontemplating cognizance post happening and also enact Section 6
\nwhich aims at prevention in anticipation of happening.\tThe object
\nsought to be achieved by enacting Section 6 is to empower the
\nCollector and District Magistrate to take preventive action by
\nprohibiting certain acts and enable cognizance being taken and
\nprosecution being launched even before commission of sati or
\nglorification of sati has actually taken place.\t Thus the sense, import
\nand content of the offence u\/s 5 are different from the one under
\nSection 6(3).\n<\/p>\n
The gist of the offence under Section 5 is the commission of an
\nact, which amounts to glorification of Sati.  It is the commission of act
\nby itself, which is made punishable on account of the same having
\nbeen declared and defined as an offence by Section 5 of the
\nOrdinance\/Act.\tThe gist of the offence under Section 6 of the
\nOrdinance\/Act is the contravention of the prohibitory order issued by
\nthe Collector and District Magistrate.\tSection 5 punishes the
\nglorification of Sati.\tSection 6 punishes the contravention of
\nprohibitory order issued by the Collector and District Magistrate,
\nwhich is a punishment for the defiance of the lawful authority of the
\nState to enforce law and order in the society.\t What is punished under
\nSection 5 is the criminal intention for glorification of sati; what is
\npunishable under Section 6 is the criminal intention to violate or defy
\nthe prohibitory order issued by the lawful authority.  We do not agree
\nwith the High Court that the ingredients of the offences contemplated
\nby Section 5 and Section 6(3) are the same or that they necessarily
\nand in all cases overlap or that prosecution and punishment for the
\noffences under Sections 5 and 6 (3)  both are violative of Article
\n20(2) of the Constitution or of the rule against double jeopardy.\n<\/p>\n
We are, therefore, of the opinion that in a given case, same set
\nof facts may give rise to an offence punishable under Section 5 and
\nSection 6(3) both.  There is nothing unconstitutional or illegal about
\nit.  So also an act which is alleged to be an offence under Section 6(3)
\nof the Act and if for any reason prosecution u\/s 6 (3) does not end in
\nconviction, if the ingredients of offence under Section 5 are made out,
\nmay still be liable to be punished under Section 5 of the Act.\tWe,
\ntherefore, do not agree with the High Court to the extent to which it
\nhas been held that once a prohibitory order under sub-section (1) or
\n(2) has been issued, then a criminal act done after the promulgation of
\nthe prohibitory\t order\tcan  be punished only under Section 6(3) and in
\nspite of prosecution u\/s 6(3) failing, on the same set of facts the
\nperson proceeded against cannot be held punishable u\/s 5 of the Act
\nalthough the ingredients of Section 5 are fully made out.\n<\/p>\n
\tThe appeals are allowed.  The judgment of the High Court is set
\naside.\tThe prosecution shall proceed against the accused persons
\nconsistently with the observations made hereinabove.  In view of the
\ndelay which has already taken place, it is directed that the Trial Court
\nshall give precedence to the present case and try to  conclude the
\nproceedings as expeditiously as possible preferably within a period of
\nsix months from the date of first appearance of the accused persons
\nbefore it pursuant to this order.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Rajasthan vs Hat Singh & Ors on 8 January, 2003 Author: R Lahoti Bench: R.C. Lahoti, Brijesh Kumar. CASE NO.: Appeal (crl.) 671-678 of 1987 PETITIONER: State of Rajasthan RESPONDENT: Hat Singh & Ors. DATE OF JUDGMENT: 08\/01\/2003 BENCH: R.C. LAHOTI & BRIJESH KUMAR. JUDGMENT: JUDGMENT R.C. Lahoti, J. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-122569","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Rajasthan vs Hat Singh & Ors on 8 January, 2003 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-rajasthan-vs-hat-singh-ors-on-8-january-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Rajasthan vs Hat Singh & Ors on 8 January, 2003 - 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