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SUPREME COURT OF INDIA
30th March 1954.
B.K. MUKHERJEA, S.R. DAS, BHAGWATI, JAGANNADHA DAS AND VENKATARAMA AYYAR, JJ
S. A. Venkataraman, Petitioner
Versus
Union of India and another, Respondents.
Advocates appeared
Messrs. A. K. Basu, K.S. Jayaram and C. R. Pattabhiraman, Senior Advocates, (Messrs. R. Ganpathy Iyer and C. V. L. Narayan, Advocates with them), for Petitioner; Messrs. M. C. Setalved. Attorney-General for India and C. K. Daphtary, Solicitor-General for India, (Messrs. Porus A. Metha and P. G. Gokhale, Advocates with them), for Respondent No. 1.
Held: The roots of the principle, which this clause enacts, are to be found in the well established rule of English law which finds expression in the maxim "Nemo debet his 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 quatrefoils acquit" or "quatrefoils convict".
1.Rao Ship Bahadur Singh v. The State of Andhra Pradesh, (1953) S C.R. 1188 followed. (2) The ambit and contents of the guarantee of the fundamental right given in Art. 20 (2) are much narrower than those of the Common Law rule in England or the doctrine of "double jeopardy" in the American Constitution. Article 20 (2) of the Constitution of India does not contain the principle of "asteroids acquit". In order to enable to evoke the protection of cl. (2) of Art. 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words "prosecuted or punished" are to be taken not distributive so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted.1
(3) The language of article 20 and the words actually used in it afford 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.
(4) It is true that the Commissioner appointed to make an inquiry under Act 37 of 1850 is invested with some of the powers of a court, particularly in the matter of summoning witnesses and compelling the production of documents and the report, which he has to make, has to be made on legal evidence adduced under sanction of oath and tested by cross-examination. But from these facts alone the conclusion does not necessarily follow that an enquiry made and concluded under Act 37 of 1850 amounts to prosecution and punishment for an offence as contemplated by Article 20 (2) of the Constitution.
As the law stands at present, the only purpose, for which an enquiry under Act 37 of 1850 should be made is to help the Government to come to a definite conclusion regarding the misbehavior of a public servant and thus enable it to determine provisionally the punishment which should be imposed upon him, prior to giving him a reasonable opportunity of showing cause, as is required under Article 311 (2) of the Constitution. An enquiry under this Act is not at all compulsory and it is quite open to the Government to adopt any other method if it so chooses.
The words "prosecution" and "punishment" have no fixed connotation and they are susceptible of both a wider and a narrower meaning; but in Article 20(2) both these words have- been used with reference to an "offence" and the word "offence" has to be taken in the sense in which it is used in General Clauses Act as meaning "an act or omission made punishable by any law for the time being in force." It follows that 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 prescribes.
A Commissioner appointed under this Act has no duty to investigate any offence which is punishable under the Indian Penal Code or the Prevention of Corruption Act and he has absolutely no jurisdiction to do so. The subject matter of investigation by him is the truth or otherwise of the imputation of misbehaviour made against a public servant and it is only as instances of misbehaviour that the several articles of charge are investigated, upon which disciplinary action might be taken by the Government if it so chooses. The mere fact that the word "prosecution" has
1. Maqboul Hussain v. State of Bombay (1953) S.C.R. 730 referred to.
been used, would not make the proceeding before the Commissioner, one for prosecution of an offence.
In an inquiry under the Public Servants (Inquiries) Act of 1850, there is thus neither any question of investigating an offence in the sense of an act or omission punishable by any law for the time being in force, nor is there any question of imposing punishment prescribed by the law which makes the act or omission an offence.
Judgment
B. K. MUKHERJEA, J.:
This is a petition under Article 32 of the Constitution, praying for a writ, in the nature of certiorari, for calling up the records of certain criminal proceedings started against the petitioner by the Special Judge, Sessions Court, Delhi and for quashing the same on the ground that these proceedings are without jurisdiction, having been commenced in violation, of the fundamental right of the petitioner guaranteed under Article 20(2) of the Constitution.
2. The petitioner was a member of the Indian Civil Service and till lately was employed as Secretary to the Ministry of Commerce and Industries in the Government of India. Certain imputations of misbehaviour by the petitioner, while holding officers of various descriptions under the Government of India, came to the notice of the Central Government and the latter being 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 of falsity of the allegations made against the petitioner, in accordance with the provisions of the Public Servants (Inquiries) Act of 1850.
The substance of the imputations was drawn up in the form of specific charges and Sir Arthur Trevor Harries, an Ex-Chief Justice of the Calcutta High Court, was appointed Commissioner under Section 3 of the said Act to conduct the inquiry and report to the Government, on the result of the same, his opinion on the several articles of charge formulated against the petitioner. The order of the Central Government directing the enquiry is dated the 21st February 1953. The charges were drawn up under six heads with various sub-heads under each one of them. The first charge alleged that the petitioner was guilty of misbehaviour inasmuch as he showed undue favour to Messrs. Millars Timber and Trading Company Limited in the matter of issue of import and export licenses, by abusing his position as a public servant in the discharge of his duties, that is, by accepting illegal gratification or valuable things for import and export licences recommended or to be recommended by him.
The second charge was to the effect that the petitioner accepted or obtained valuable things for himself and other members of his family, without paying for them, on different dates from Messrs, Millars Timber and Trading Company Limited for recommending their applications for import licences and export permits. The fourth and the fifth charges were similar in nature to charges 1 and 2 except that they related to the petitioner s dealings with another firm known as Sunder Das Saw Mills,.
3. The enquiry proceeded in the manner laid down in the Public Servants (Inquires) Act. The charges were read out to the petitioner and his plea of "not guilty" was formally recorded. Evidence was adduced both by the prosecutor and the defence and the witnesses on both sides were examined on oath and cross-examined and re-examined in the usual manner. The Commissioner found, on a consideration of the evidence, that four of the charges under various sub-heads were proved against the petitioner and submitted a report to that effect to the Government on the 4th of May 1953. By a letter dated the 15th of May 1953, the Government informed the petitioner that, on careful consideration of the report, the President accepted the opinion of the Commissioner and in view of the findings on the several charges arrived at by the latter, was provisionally of opinion that the petitioner should be dismissed.
Opportunity was given to the petitioner by this letter in terms of Article 311 (2) of the Constitution to show cause against the action proposed to be taken in regard to him and it was stated that any representation, which he might desire to make, would be taken into consideration before the final order was passed. The petitioner, it seems did make a representation which was considered by the Government and after constitution with the Union Public Service commission the President
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