2003(1) Crimes 356 (SC)
Supreme Court of India
(From Rajasthan High Court)
R.C. Lahoti & Brijesh Kumar, JJ.
State of Rajasthan —Appellant
versus
Hat Singh & Ors. —Respondent
Criminal Appeal Nos. 671-678 of 1987
Decided on 8-1-2003

Very important point
The offences under Sections 5, 6(1) r/w 6(3) and 6(2) r/w 6(3) under the Rajasthan Sati (Prevention) Ordinance or Act of 1987 are three district offences. In a given case, same set of facts may give rise to an offence punishable u/s 5 and Section 6(3) both. It will not be hit by Rule against double jeopardy.

Headnote:(i) The Rajasthan Sati (Prevention) Ordinance and Act, 1987—Section 19—Removal of doubt—Ordinance or Act not to effect any temple constructed for glorification of sati and in existence before them or continuance of any ceremonies in such temple in connection with such sati—High Court holding it unconstitutional and declared void and struck down—No opinion expressed by Supreme Court in the present appeal—(See para 4).

       (ii) The Rajasthan Sati (Prevention) Ordinance—Section 6(2)—Prohibiting order under for glorification of the commission of sati in any manner in District of Jaipur—High Court holding it was not duly published in Official ­Gazette.

       Held : 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. 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 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 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. (Para 5)

       (iii) Constitution of India, 1950 —Article 20(2)—General Clauses Act, 1897—Section 26—Cr.P.C. 1973—Section 300—I.P.C. 1860—Section 71—Rule against double jeopardy—High Court holding that Sections 5 and 6 of the Rajasthan Sati (Prevention) Ordinance and Act, 1987 are overlapping and therefore once a prohibitory order has been made by the Collector under sub-sections (1) or (2) of Section 6, then Section 5 ceases to apply—Whether correct? (No)—Appeal allowed.

       Held : 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. 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 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 us 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. The appeal is 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. (Paras 13, 14 and 15)