Double Jeopardy

Double Jeopardy

The petitioner was a member of Indian Civil Service. Certain imputations of misbehaviour by the petitioner came to the notice of the Central Govt and it satisfied that there were prima facie good grounds for making an enquiry directed a formal and public enquiry to be made as to the truth or falsity of the allegations under the Public Servants (Inquiries) Act of 1850. The substance of the charges was drawn by in the form of specific charges and the ex-Chief Justice of the Calcutta High Court was appointed Commissioner under the said Act, to conduct the enquiry and report to the Govt. The charges were that the petitioner was guilty of abusing his position as public servant by accepting illegal gratification for granting some licences to a company and other related charges.

The Enquiry Commissioner found that certain charges were proved against the petitioner. The Govt arrived at provisionally of opinion that the petitioner should be dismissed. Opportunity was given to the petitioner in terms of Art.311(2) of the Constitution to show cause against the action proposed. The petitioner did make a representation which was considered by the Govt and after consultation with the Union Public Service Commission, the President finally decided to impose the penalty of dismissal upon the petitioner. The order of dismissal was passed in 1953.

The police submitted a charge sheet against the petitioner before the Special Sessions Judge Delhi for such offences under Sec.161/165 of IPC and Sec.5(2) of the Prevention of Corruption Act. Petitioner appeared before the Court.

The petitioner’s stand was that he had already punished by way of dismissal and therefore this criminal proceeding was without jurisdiction under Art.20(2) of the Constitution.

The petitioner filed a Writ, in the nature of certiorari, for calling upon the records of the criminal proceedings. The sole point for consideration of the Court was: whether in such situation, there has been a violation of the fundamental right of the petitioner under Art.20(2) of the constitution?

The scope and meaning of the guarantee implied in Art.20(2) has been indicated in Maqbool Hussain v. State of Bombay. The roots of the principle are to be found in the well established rule of English law which finds expression in the maxim ‘Nemo debet bis vexari” – a man must not be put twice in peril for the same offence.

If a man is indicted again for the same offence in an English Court, he can plead, as a complete defence, his former acquittal or conviction, or as it is technically expressed, take the plea of ‘autrefois acquit’ or ‘autrefois convict’.

The corresponding provision in the Federal Constitution of the USA is contained in the Fifth Amendment, which provides inter alia: “Nor shall any person be subjected for same offence to be put twice in jeopardy of life and limb.”

This principle has been recognised and adopted by the Indian Legislature and is embodied in the provisions of Sec.26 of the General Clauses Act and Sec.403 of the Criminal Procedure Code.

Although these were the materials which formed the background of the guarantee of the Fundamental Right in Art.20(2) of the Indian Constitution, the ambit and the contents are much narrower than those of the common law rule in England or the doctrine of ‘double jeopardy” in the American Constitution.

Art 20(2) of the Indian Constitution does not contain the principle of ‘autrefois acquit” at all. It seems that Indian Constitution makers did not think it necessary to raise one part of the common law rule to the level of a fundamental right and thus make it immune from legislative interference. This has been left to be regulated by the general law of the land.

In order to enable a citizen to invoke the protection under Art.20(2) of the Indian Constitution, there must have been both prosecution and punishment in respect of the same offence. The words ‘prosecuted and punished’ are to be taken not distinct so as to mean ‘prosecuted or punished’. Both the factors must co-exist in order that the operation of the clause may be attracted.

Art.20 of the Indian Constitution: Protection in respect of conviction for offences:

Art.20(1): No person shall be convicted of any offence except for violation of the law in force…….

Art.20(2): No person shall be prosecuted and punished for the same offence more than once.

Art.20(3): No person accused of any offence shall be compelled to be a witness against himself.

The position is also different under the American Constitution. There the prohibition is not against a second punishment but against the peril in which a person may be placed by reason of a valid indictment being presented against him, before a competent court, followed by proper arraignment and plea and a lawful impanelling of the jury. It is not necessary to have verdict at all.

It has been held by the Indian Supreme Court in Maqbool Hussain’s case that the language of Art.20 and the words actually used in it afforded a clear indication that the proceedings in connection with the ‘prosecution and punishment’ of a person must be in the nature of a criminal proceeding, before a court of law or judicial tribunal, and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute, but which is not required by law to try a matter judicially and on legal evidence.

In Maqbool Hussain case, the proceedings were taken under the Sea Customs Act before a Customs authority who ordered confiscation of goods. It was held that such proceedings were not ‘Prosecution’, nor the order of confiscation a ‘Punishment’ within the meaning of Art.20(2) of the Indian Constitution, in as much as the Customs authority was not a court or a judicial tribunal and merely exercised administrative power vested in him for revenue purposes.

Therefore in this case, the facts are no doubt different and the point that requires determination is, whether the petitioner can be said to have satisfied all the conditions that are necessary to enable him to claim the protection of Art.20(2).

The charges upon which he is being prosecuted now, are charges under Sec.161 and 165 of IPC and Sec.5(2) of the Prevention of Corruption Act. The question is whether the petitioner had already been prosecuted and punished for these offences?

But the petitioner’s lawyer argued that his client was in fact, prosecuted for these identical offences before the Commissioner under Enquiry Act 1850. This was not a mere departmental enquiry of the type referred in Maqbool Hussain’s case. The Commissioner was a judicial tribunal in the proper sense. He had to adjudicate on the charges judicially, recorded the evidence on oath, which he was authorised by law to administer. The Commissioner had all the powers of a court. He could summon a witness, compel production of relevant documents, and punish people for contempt. He had undoubtedly no power to impose any punishment and had only to forward his report to the Govt. The Govt punished the petitioner. It is immaterial for the purpose of Art. 20(2)  that the prosecution was before one authority and punishment was inflicted by another.

It is true that the Commissioner has such powers of a court, but under Enquiry Act 37 of 1850 the Commissioner has no power to punish the petitioner, so as to amount to prosecution and punishment under Art.20(2).

The Exact Scope and Purpose of the Enquiry under Enquires Act 37 of 1850:

It was well established principle of English law that, except where it is otherwise provided by a statute, all public officers and servants of the Crown hold their appointments at the pleasure of the Crown. Their services can be terminated without assigning any reason and even if any public servant considers that he has been unjustly dismissed, his remedy is not by way of a lawsuit but by an appeal of an official or political character. This principle of law was applied in India ever since the advent of British rule in this country and the servants in the employment of the East India Company also came within the purview of this rule. (Shenton v. Smith 1895 A.C.229).

It is be remembered that it was during the period of the East India Company that the Public Servants Enquiry Act was passed in 1850. The object of the Act was to regulate enquiry into the behaviour of public servants, not removal from service without the sanction of the Govt. The enquiry was quite optional with the Govt and did not affect in any way the powers of the Govt to dismiss its servants at pleasure and this was expressly provided by Sec.25 of that Act. It reads, “Nothing in this Act shall be construed to affect the authority of the Govt to suspending or removing any public servant for any cause without an enquiry under the Act.”

After assumption of the Govt of India by the Crown, this rule of English common law continued unaltered till 1919 when Sec.96B was introduced by the amended Govt of India Act of that year. Sec.96B(1) reads: “Subject to the provisions of this Act and of rules, every person in the civil service of the Crown in India holds office during His Majesty’s pleasure and may be employed in any manner required by a proper authority within the scope of his duty, but no person in that service may be dismissed by any authority subordinate to that by which he was appointed….” Thus, one restriction imposed by this section upon the unfettered right of the Govt to dismiss its servants at its pleasure, was that no servant could be dismissed by any authority subordinate to that by which he was appointed.

The Civil Service Classification, Control and Appeal Rules were framed. The penalties include, amongst others, censure, withholding of increment, dismissal, reduction in rank and removal. No such order shall be passed unless the person concerned has been informed and an adequate opportunity of defending himself. These rules have no statutory force and it was held by the Privy Council that when an officer was dismissed from service without complying the provisions of these rules, he had no right of action against the Crown.

The position was altered to some extent in the Govt of India Act 1935, and in addition to the restriction imposed by Sec.96-B(1) of the Govt of India Act 1919, that a civil servant could not be dismissed by an authority subordinate to that by which he was appointed. A further statutory provision was made that a civil servant could not be dismissed or reduced in rank unless the person concerned was given a reasonable opportunity.

Art.311(2) of the present Indian Constitution has further added the word “removal” after “dismissal”. Now under Rule 55 of the Civil Service Rules, a civil servant has now a constitutional right to claim a reasonable opportunity of showing cause under Art. 311(2) of the Indian Constitution.

Therefore, as the law stands at present, the only purpose, for which the enquiry under Act 37 of 1850 could be made, is to help the Govt to come to a definite conclusion the misbehaviour of a public servant. It is a matter of convenience merely and nothing else.

The words “prosecution and punishment” have no fixed connotation. But in Art.20(2) both these words have been used with reference to an “offence”. The word “offence” has to be taken in the sense in which it is used in the General Clauses Act as meaning “an act or omission made punishable by any law for the time being in force.”

The prosecution must be in reference to the law which creates the offence and the punishment must also be in accordance with what that law prescribed.

The Public Servants Inquires Act does not itself create any offence nor does it provide any punishment. A Commissioner appointed under this Enquiries Act 1850 has not duty to investigate any offence which is punishable under IPC or the Prevention of Corruption Act.

A somewhat analogous case would be that a member of the Bar whose name is struck off the rolls on the grounds of professional misconduct, in exercise of disciplinary jurisdiction. The professional misconduct might amount to a criminal offence, but if we are to accept the petitioner’s contention as correct, the man cannot be prosecuted for it.

Therefore, in an enquiry under the Public Servants Inquiries Act 1850, there is neither any question of investigating an offence in sense of an act or omission punishable by the law in force, nor is there any question of imposing punishment prescribed by the law.

Hence the Petitioner’s writ is dismissed.

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