# • [2015) 1 S.C.R. 849 . UNION OF INDIA & ANR v. PURUSHOTTAM

- **Citation:** [2015] 1 S.C.R. 849
- **Court:** Supreme Court of India
- **Decided:** 2015-01-05
- **Case number:** Civil Appeal No. 7133 of 2008
- **Bench:** Vikramajit Sen, Shiva Kirti Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/2015-1-s-c-r-849-union-of-india-anr-v-purushottam-30431
- **Pages:** 26

## Headnote

A
B
SerVice Law - Departmental enquiry - Permissibility -
Summary Court Martial (SCM) proceedings ulr. 133 of Army C
Rules - Holding the delinquent guilty for the offences charged
- Reviewing authority acting uls. 162 of Army Act set aside
the SCM proceedings on the ground of incorrect framing of
charges and lackadaisical recording of evidence - Thereafter
army authorities issued Show Cause Notice to the delinquent 0
alleging the same charges for which SCM proceedings were
initiated and later set aside - Termination of the services of
the delinquent - Writ petition challenging termination - High
Court allowed the petition setting aside Show Cause Notice
- However, the court did not preclude the delinquent from
initiation of departmental action - On appeal, held: Acquittal
E
of an employee by a criminal court would not automatically
and conclusively impact Departmental proceedings - Unless
the delinquent earns honourable acquittal departmental
proceedings cannot be precluded - The delinquent in the
present case having not earned honourable acquittal, not
F
precluded from departmental proceedings - Army Act, 1950
- s. 162 Army Rules - r. 133.
Army Rules, 1950 -
r. 133 - Summary Court Martial
proceedings ulr. 133 - Review of - Held: r. 133 does not G
empower Deputy Judge-Advocate General as the reviewing
authority, but merely confers on it forwarding function - The
finding and sentence of Summary Court Martial ought to be
849
H
850
SUPREME COURT REPORTS
[2015) 1 S.C.R.
A left undisturbed by the reviewing authority- Army Act, 1950 -
s. 161(1).
Army Act, 1950 - s. 121 - Applicability -
Scope of -
Held: s. 121 postulates the autrefois acquit and autrefois
8
convict as distinct from Art. 20(2) of the Constitution which
postulates only autreifois convict - However, the insulation u/
s. 121 is only restricted only to second court martial or
dealings u/ss. 80, 83, 84 and 85 of the Act - Constitution of
India, 1950 - Article 20(2).
Constitution of India, 1950 - Art. 20(2) - Principle of
Double Jeopardy - Applicability of - Summary Court Martial
proceedings set aside - Subsequent Show Cause notice to
the delinquent on the same set of charges - Held: Art. 20(2)
does not within it, imbibe the principle of autrefois acquit -
D
Therefore, the subsequent "departmental or disciplinary .
proceedings, even if punitive in amplitude, would not be
outlawed by Art. 20(2) - In the present case delinquent not
precluded from departmental proceedings.
E
F
Interpretation of Statutes - Interpretation of rules - Held:
Rules should be interpreted in a manner which would repose
them in harmony with the parent statute - If the rules ordain
an action not contemplated by the statute, it would suffer from
the vice of excessive delegation and thus would be ultra vires.
Disposing of the appeal, the Court
HELD: 1. The framers of the Constitution were fully
alive to the differing and disparate concepts of autrefois
acquit and autrefois convict and consciously chose to
G circumscribe the doctrine of double jeopardy only to
prosecution culminating in a conviction. Article 20(2) of
the Constitution does not within it imbibe the principle of
autrefois acquit. A fortiori Article 20(2), which
contemplates "prosecuted and punished" thus evincing
H the conscious exclusion of autrefois acquit, palpably
UNION OF INDIA & ANR. v. PURUSHOTTAM
851
postulates that the prescribed successive punishment A
must be of a criminal character. It irresistibly follows that
departmental or disciplinary proceedings, even if punitive
in amplitude, would not be outlawed by Article 20(2). [Paras
10 and 12] (862-H; 863-A; 865-F-H]
Maqbool Hussain vs. State of Bombay 1953 SCR 730 -
8
followed.
R. P. Kapur vs. Union of India AIR 1964 SC 787: 1964
SCR 431 - held inapplicable.
c
R.S. Nayak vs. A.R. Antulay (1984) 2 SCC 183:1984 (2)
SCR 495; Haldiram Bhujiawala vs. Anand Kumar Deepak
Kumar (2000) 3 SCC 250: 2000 (1) SCR 1247; Samatha vs.
State of Andhra Pradesh (1997) 8 SCC 191: 1997 (2) Suppl.
SCR 30

## Text

_Characters 0–39,980 of 52,570. This is a partial read: ask again with offset=39980 for what follows._

•
[2015) 1 S.C.R. 849 .
UNION OF INDIA & ANR.
v.
PURUSHOTTAM
(Civil Appeal No. 7133 of 2008)
JANUARY 05, 2015
[VIKRAMAJIT SEN AND SHIVA KIRTI SINGH, JJ.]
A
B
SerVice Law - Departmental enquiry - Permissibility -
Summary Court Martial (SCM) proceedings ulr. 133 of Army C
Rules - Holding the delinquent guilty for the offences charged
- Reviewing authority acting uls. 162 of Army Act set aside
the SCM proceedings on the ground of incorrect framing of
charges and lackadaisical recording of evidence - Thereafter
army authorities issued Show Cause Notice to the delinquent 0
alleging the same charges for which SCM proceedings were
initiated and later set aside - Termination of the services of
the delinquent - Writ petition challenging termination - High
Court allowed the petition setting aside Show Cause Notice
- However, the court did not preclude the delinquent from
initiation of departmental action - On appeal, held: Acquittal
E
of an employee by a criminal court would not automatically
and conclusively impact Departmental proceedings - Unless
the delinquent earns honourable acquittal departmental
proceedings cannot be precluded - The delinquent in the
present case having not earned honourable acquittal, not
F
precluded from departmental proceedings - Army Act, 1950
- s. 162 Army Rules - r. 133.
Army Rules, 1950 -
r. 133 - Summary Court Martial
proceedings ulr. 133 - Review of - Held: r. 133 does not G
empower Deputy Judge-Advocate General as the reviewing
authority, but merely confers on it forwarding function - The
finding and sentence of Summary Court Martial ought to be
849
H
850
SUPREME COURT REPORTS
[2015) 1 S.C.R.
A left undisturbed by the reviewing authority- Army Act, 1950 -
s. 161(1).
Army Act, 1950 - s. 121 - Applicability -
Scope of -
Held: s. 121 postulates the autrefois acquit and autrefois
8
convict as distinct from Art. 20(2) of the Constitution which
postulates only autreifois convict - However, the insulation u/
s. 121 is only restricted only to second court martial or
dealings u/ss. 80, 83, 84 and 85 of the Act - Constitution of
India, 1950 - Article 20(2).
Constitution of India, 1950 - Art. 20(2) - Principle of
Double Jeopardy - Applicability of - Summary Court Martial
proceedings set aside - Subsequent Show Cause notice to
the delinquent on the same set of charges - Held: Art. 20(2)
does not within it, imbibe the principle of autrefois acquit -
D
Therefore, the subsequent "departmental or disciplinary .
proceedings, even if punitive in amplitude, would not be
outlawed by Art. 20(2) - In the present case delinquent not
precluded from departmental proceedings.
E
F
Interpretation of Statutes - Interpretation of rules - Held:
Rules should be interpreted in a manner which would repose
them in harmony with the parent statute - If the rules ordain
an action not contemplated by the statute, it would suffer from
the vice of excessive delegation and thus would be ultra vires.
Disposing of the appeal, the Court
HELD: 1. The framers of the Constitution were fully
alive to the differing and disparate concepts of autrefois
acquit and autrefois convict and consciously chose to
G circumscribe the doctrine of double jeopardy only to
prosecution culminating in a conviction. Article 20(2) of
the Constitution does not within it imbibe the principle of
autrefois acquit. A fortiori Article 20(2), which
contemplates "prosecuted and punished" thus evincing
H the conscious exclusion of autrefois acquit, palpably
UNION OF INDIA & ANR. v. PURUSHOTTAM
851
postulates that the prescribed successive punishment A
must be of a criminal character. It irresistibly follows that
departmental or disciplinary proceedings, even if punitive
in amplitude, would not be outlawed by Article 20(2). [Paras
10 and 12] (862-H; 863-A; 865-F-H]
Maqbool Hussain vs. State of Bombay 1953 SCR 730 -
8
followed.
R. P. Kapur vs. Union of India AIR 1964 SC 787: 1964
SCR 431 - held inapplicable.
c
R.S. Nayak vs. A.R. Antulay (1984) 2 SCC 183:1984 (2)
SCR 495; Haldiram Bhujiawala vs. Anand Kumar Deepak
Kumar (2000) 3 SCC 250: 2000 (1) SCR 1247; Samatha vs.
State of Andhra Pradesh (1997) 8 SCC 191: 1997 (2) Suppl.
SCR 305 ; State of Bihar vs. Murad Ali Khan (1988) 4 SCC D
655: 1988 (3) Suppl. SCR 455 - referred to.
John Hudson v United States 522 U.S. 93 (1997); United
States v. Halper 490 U.S. 436 (1989); United States v. Ward
448 U.S. 242 (1980) - referred to.
2. Acquittal of an employee by a Criminal Court would
not automatically and conclusively impact Departmental
proceedings. Firstly, this is because of the disparate
degrees of proof in the two, viz. beyond reasonable doubt
E
in criminal prosecution contrasted by preponderant proof F
in. civil or departmental enquiries. Secondly, criminal
prosecution is not within the control of the concerned
department and acquittal could be the consequence of
shoddy investigation or slovenly assimilation of evidence,
or lackadaisical if not collusive conduct of the Trial etc. G
Thirdly, an acquittal in a criminal prosecution may
preclude a contrary conclusion in a departmental enquiry
if. the former is a positive decision in contradistinction to
a passive verdict which may be predicated on technical
infirmities. In other words, the Criminal Court must H
A
B
c
852
SUPREME COURT REPORTS
[2015] 1 S.C.R.
conclude that the accused is innocent and not merely
conclude that he has not been proved to be guilty beyond
reasonable doubt. [Para 13] [866-D-G]
Deputy General of Police vs. S. Samuthiram (2013) 1
sec 598: 2012 (11) SCR 174 - relied on.
3. In the present case, it cannot be said that the
respondent had earned an honourable acquittal.
Consequently, whether on reliance of the Double
Jeopardy principle or on the setting aside of his
punishment, Departmental or Disciplinary proceedings
ought not to be viewed as precluded. [Para 14] [8&7-F-G]
4. Section 121 of Army Act is distinct from Article
20(2) of the Constitution, since it palpably postulates both
0
autrefois acquit and autrefois convict to a court-martial or
a trial by criminal courts, but then restricts the insulation
only to a second court-martial or a dealing u/ss. 80, 83,
84 and 85 of the Army Act. [Para 16] [868-D]
5. The power to do a particular act must be located
E
in the statute, and if the rules framed under the statute
ordain an action not contemplated by the statute, it would
suffer from the vice of excessive delegation and would
on this platform be held ultra vires. Rules must, therefore,
be interpreted in a manner which would repose them in
F
harmony with the parent statute. The Show Cause Notice
impugned before the High Court was predicated on Rule
13 of Army Rules, by obviously circuitously taking
recourse to the residuary clause 13(3)(111)(V) of the
. relevant Table. The Appellants could have resorted to
G Section 20 of the Army Act. The Army Authorities are
often consumed by the Army Rules without fully
comprehending the scope of the Army Act itself .. [Para
19] [870-E-G]
H
6. Rule 133 of Army Rules does not empower Deputy
UNION OF INDIA & ANR. v. PURUSHOTIAM
853
Judge-Advocate General as the reviewing authority, but A
merely confers on it a forwarding function, the Rule
stating that the proceedings of the Summary Court
Martial (SCM) on promulgation require to be forwarded to
the competent officer under Section 162 of the Army Act,
but only parenthetically provides that this will occur B
"through" Deputy Judge-Advocate General. This cannot
be interpreted substitutively, as enshrining in Deputy
Judge-Advocate General the statutory remit of the
reviewing authority under Section 162. [Para 23] [872-GH; 873-A]
C
7. A Summary Court Martial does not require for its
efficacy, finality and validity, the confirmation of the
Confirming Authority, as has been mandated for the other
three classes of Court Martial, enumerated in Section 153.
0
Section 161 (1) expressly states that the finding and
sentence of a Summary Court Martial shall not require to
be confirmed, but may be carried out forthwith. The
present one, being a transmission of proceedings under
Section 162, the Reviewing Authority's basis for
insistence that a plea of "not guilty" ought to have been
E
recorded and subsequent setting aside of the
consequences of the Court Martial presided by the
Officer Commanding, cannot stand. [Para 24] (873-C-F]
8. The Respondent did not make any Statement of
F
Defence at the Summary Court Martial hearing itself, and
neither produced any defence witnesses on his behalf
nor cross-examined either of the two prosecution
witnesses therein. Faced with these inescapable facts,
the Reviewing Authority could not have set aside the G
proceedings on such a technical ground. The Court
Martial finding and sentence ought to have been left
undisturbed by the Reviewing Authority, self-sufficiently
valid as it was under Section 161 (1). The Summary Court
Martial order is restored. [Paras 24 and 26] (874-A-C, F]
H
854
SUPREME COURT REPORTS
[2015] 1 S.C.R.
A
Chief of Army Staff vs. Major Dharam Pal Kukrety 1985
B
c
D
E
(2) SCC 412: 1985 (3) SCR 415 Union of India vs. Harjeet
Singh Sandhu 2001 (5) SCC 593:2001 (2) SCR 1127 -
relied on.
Case law reference:
1984 (2) SCR 495
referred to
Para 10
2000 (1) SCR 1247
referred to
Para 10
•
1997 (2) Suppl. SCR 305
referred to
Para 10
1953 SCR 730
followed
Para 10
1988 (3) Suppl. SCR455 referred to
Para 11
1964 SCR 431
held
Para 13
inapplicable
2012 (11) SCR 174
referred to
Para 13
1985 (3) SCR 415
relied on
Para 18
2001 (2) SCR 1127
relied on
Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7133 of 2008.
From the Judgment & Order dated 21.4.2008 of the High
F
Court of Delhi at New Delhi in CWP 4254 of 2003.
K. Radhakrishnan, R.K. Rathore, R. Bala, N.K. Jha, B.V.
Bairam Dass, B. Krishna Prasad for the Appellants.
Arun Bhardwaj, Shekhar Kumar, Dr. Kailash Chand for the
G
Respondent. .
H
The Judgment of the Court was delivered by
VIKRAMAJIT SEN, J.1. The Respondent herein, No.
7773409X Havildar (Military Police) Purushottam, was enrolled
UNION OF INDIA & ANR. v. PURUSHOTIAM
855
[VIKRAMAJIT SEN, J.]
in the Corps of Military Police, on 7th June 1983. On 27th
A
November 2001, while the Respondent was posted to 916
Provost Unit (General Reserve Engineer Force, or GREF). he
was detailed as a member of Mobile Squad and was tasked
to carry out checks of various Gref detachments located on the
Udhampur-Srinagar highway. On completion of duty, the Squad
B
Commander reported the following activities of the Respondent:
a) He had demanded Rs. 15000 from the Commander 367 RM
Platoon (Kanbal) against surplus construction stores held with
the platoon; b) he had taken 100 litres of HSD (high speed
diesel) with barrel from Superintendent BR-I HL Meena of 367 c
Platoon, Gund Detachment and thereafter had sold it along with
the barrel to a civilian for Rs.1800/-, and this allegation was
levelled by the driver of the vehicle in which he was traveling;
c) He had extorted Rs.6000/- from Superintendent BR-II Sanjay
Kumar, 385 RM Platoon, for not reporting surplus construction
0
materiatheld by'the platoon; d) He had taken one coat/parkha
along with two steel hammers from QM, at 118 RCC (GREF).
2. Based on these reports, the Chief Engineer, Project
Beacon, ordered a Court of Inquiry which investigated these
allegations and concluded that. the Respondent was
E
blameworthy for two of the four aforesaid acts committed
without authority: firstly, demanding and taking 100 litres of
HSD from BR-I HL Meena on 30th November, 2001 and selling
it to a civilian, and secondly, on 5th December, 2001
demanding and taking a coat/parkha and two stone breaking
F
steel hammers. The Chief Engineer partially agreed with the
findings of the Court of Inquiry and directed disciplinary action
against the Respondent for the aforementioned two acts. The
Respondent was arraigned on two counts for the two respective
acts and charged with committing extortion, under Section 53(a)
G
of the Army Act, 1950. Summary of Evidence was recorded
under Rule 23, Army Rules and the Respondent was tried by
Summary Court Martial (SCM), headed by Lt. Col CM Kumar,
Officer Commanding, (OC) on 11.04.2002. The Respondent
pleaded guilty to both charges. At the hearing of the SCM, two
H
856
SUPREME COURT REPORTS
[2015) 1 S,C.R..
A
prosecution witnesses were examined, both of whom the
Respondent declined to cross-examine. The Respondent
neither made any statement in his defence, nor did he produce
any defence witnesses. He was ultimately awarded the
sentence of a reduction in rank to that of "Naik". Thereafter, for
B
reasons recondite, the 'reviewing authority' purportedly acting
under Section 162 of the Act, while 'reviewing' the SCM, set
aside the same, "due to incorrect framing of charge and
lackadaisical recording of evidence at the summary of
evidence". This intervention is in the teeth of the Certification
c in consonance with Rule 115. Inasmuch as it is the Deputy
Judge-Advocate General who has made these observations
and the records do not bear out and authenticate that his
opinion/observation, was subscribed to or approved by the
'reviewing authority' who statutorily has to be the senior ranking
D
officials enumerated in Section 162, there appears to us that
a 'rev.iew' did not actually take place. This is essentially a
usurpation of power by Deputy Judge-Advocate General.
Rule 133 no doubt mentions this officer, but his role is restricted
to forwarding the proceedings of the Summary Court Martial
E
to the officer authorised to deal with them in pursuance of
Section 162. At the most the Deputy Judge-Advocate General
may append his own opinion to the proceedings of the
Summary Court Martial while forwarding them to the authorised
officer. This is amply clear from the fact that the records made
available to the High Court as well as to this Court do not
F
contain any Order of the "prescribed officer" setting aside the
proceedings or reducing sentence to any other sentence which
the SCM had imposed. It also seems to us to be plain that
instead of setting aside or reducing the sting of the sentence
the Deputy Judge-Advocate General has opined, without any
G statutory authority, that the Summary Court Martial itself should
be set aside and the Accused/Respondent be relieved of all
consequences of trial. Wholly contrary to his own opinion, the
Deputy Judge-Advocate General has gone on to return a finding
of misappropriation and a sentence that the conduct of the
H
Accused/Respondent renders his retention ir. the service as
UNION OF INDIA & ANR. v. PURUSHOTTAM
857
[VIKRAMAJIT SEN, J.]
undesirable. It determined that although the officer conducting
the Court Martial recorded a plea of guilty under Rule 116(4),
a perusal of the Respondent's statement in the Summary of
Evidence belied this recording; that therein, qua the second
charge, the Respondent had contested the charge stating that
he had requested for supply of only one hammer which was to
be returned at the end of winter. Upon later inspecting the
hammer, the Respondent discovered that there were two
hammers packed inside, instead of the one that he had
requested.
3. Deputy Judge-Advocate General purporting to act as
the Reviewing Authority, considering this discrepancy, opined
that the "officer holding the trial should have, under AR 116 (4),
altered the record and entered a plea of 'not guilty' in respect
of both charges, and proceeded with the trial accordingly. Noncompliance of the aforesaid provision, in the instant case, being
a serious legal infirmity, makes the SCM proceedings liable
to be set aside. Therefore, notwithstanding the pleas of guilty
by the accused, the findings, conviction on both charges are
not sustainable. In view of the above, I am of the considered
opinion that, the Summary Court Martial proceedings are liable
to be set aside, and I advise you accordingly. If you agree,
following will be a suitable minute for you to record on page
"J" of the proceedings:- 'I set aside the proceedings. I direct
that the accused be relieved of all consequences of the trial'."
The records do not reveal that this advice was acted upon.
4. It was in this impasse that a Show Cause Notice (SCN)
was issued shortly afterwards to the Respondent, stating that
the Respondent had during his tenure been found to have
engaged in illegal activities. The Respondent was charged with
acts of indiscipline for the same set of alleged acts that had
erstwhile been the subject of the Court Martial proceedings
against him for two offences of extortion. It was made known
to the Respondent that his continued presence in the Army
would possibly be detrimental to maintaining discipline and
A
B
c
D
E
F
G
H
858
SUPREME COURT REPORTS
[2015] 1 S.C.R.
A
hence his retention in service was considered undesirable. The
Respondent was required to show cause as to why his service
should not be terminated under the provisions of Army Rule 13.
The Respondent has submitted that he replied to this notice but
it is not on record. The Respondent was allegedly orally told
B
that his services had been terminated and a Discharge
Certificate under Rule 13 was issued on 05.02.2003.
5. The Respondent filed a CWP against this Discharge
repudiating the legality of its issuance against the same alleged
acts that had already been subjected to a Court Martial
C
proceeding. The Respondent relied on Articles 14, 16, 21 and
311 of the Constitution, and declaimed against the "illegal
procedure and short cut method" taken by the Army authorities
to get rid of him. The Appellants stated in their reply before the
High Court, as a preliminary point, that no right of the
D
Respondent, let alone a fundamental right, had been violated.
The jurisdiction of the High Courts thus being unwarranted, the
Appellants prayed for a preliminary dismissal on that point. The
Appellants denied that the Respondent had been Discharged
for offences of extortion; rather, the Respondent's misconduct,
E
amounting to moral turpitude and gross indiscipline, meant that
his continued service in the Army was no longer considered
desirable. The Appellants canvassed that the Respondent, not
being a "civil servant", could not claim the protection of Article
311. Finally, they submitted that the Discharge procedure had
F
been strictly followed in this case. The High Court allowed the
Respondent's writ petition, and quashed Show Cause Notice
as unsustainable. The Court so concluded on the basis that the
Show Cause Notice relied on exactly the same set of charges
as had run their course in the Court Martial, resulting in the
G
Respondent's acquittal. The Court did not accept the distinction
articulated by the Appellants, between extortion being the
subject of the Court Martial, and misconduct and indiscipline
being the subject of the Show Cause Notice and Discharge.
Nevertheless, the High Court did not preclude the Respondent
H
before it from "taking any departmental action against the
UNION OF INDIA & ANR v. PURUSHOTTAM
859
[VIKRAMAJIT SEN, J.]
petitioner in respect of the allegations, in accordance with law."
A
This is the Judgment which is before us for our scrutation.
6. The factual tapestry having been threaded, we are
confronted primarily as to whether the Appellants could have
legally issued the notice and discharged the Respondent for
8
misconduct and indiscipline when the same set of alleged acts
had been earlier charged as offences and put through a Court
Martial, in which the Respondent was ultimately acquitted. In
other words, the legal nodus that we have to cogitate upon is
the propriety of the initiation of a Discharge Enquiry of a
C
member of the Army subsequent to Summary Court Martial
proceedings against him on the same or similar charges having
beel) set aside. In terms of the impugned Judgment, Discharge
Order passed by the Army/Union of India (UOI), Appellants
before us, has been quashed. However the commencement of
Departmental action in respect of the same allegations has not D
been interdicted or precluded. The Appellants vehemently
contend that the High Court erred in quashing the assailed
Discharge Order. Conspicuously, the Respondent has not
assailed the grant to the UOI of leave to initiate a Departmental
Enquiry. However, it has been vehemently contended before us
E
that the SCN dated 31.10.2002 suffers from the vice of double
jeopardy and, therefore, has been correctly quashed by the
Division Bench. The rubicon cleaving the commencement or
continuance of Departmental proceeding when criminal
charges have also been levelled is always difficult to discover.
F
But there is a watershed which can be discerned albeit with a
fair share of arduousness.
7. We shall forthwith analyse the concept of double
jeopardy, especially in the backdrop of Constitutions of G
countries spanning our globe. The Fifth Amendment of the U.S.
Constitution promises that - "No person shall be held to answer
for a capital; or otherwise infamous crime, unless on a
presentment or indictment of a grand jury, except in cases;
arising in the land or naval forces, or in the militia, when in actual
H
860
SUPREME COURT REPORTS
[2015] 1 S.C.R.
A
service in time of war or public danger; nor shall ar.y person
be subject for the same offense to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property
s be taken for public use, without just compensation." This
protection has been construed as admitting of three facets: i)
Autrefois Acquit ii) Autrefois Convict iii) Protection against
multiple punishments. We shall be referring briefly to John
Hudson vs. United States 522 US 93 (1997) where the U.S.
c Supreme Court has delineated on what the parameters of
double jeopardy. Second, Article 35(3)(m) of the Constitution
of the Republic of South Africa (1996) provides that a person
is "not to be tried for an offence in respect of an act or omission
for which that person has previously been either acquitted or
0
convicted". Third, Section 11 (h) of the Charter of Rights of the
Canadian Constitution provides that any person charged with
an offence has the right "if finally acquitted of the offence, not
to be tried for it again and, if finally found guilty and punished
for the offence, not to be tried or punished for it again". Fourth,
E
Article 14 (7) of the International Covenant on Civil and Political
Rights (ICCPR, 1966) states: "No one shall be liable to be tried
or punished again for an offence for which he has already been
finally convicted or acquitted in accordance with the law and
penal procedure of each country". Fifth, Article 13 of the
Constitution of Pakistan, 1973, reads thus - Protection against
F
double punishment and self incrimination ? No person- (a) shall
be prosecuted or punished for the same offence more than
once; or (b) shall, when accused of an offence, be compelled
to be a witness against himself.
G
8. Venturing a divergent path, the UK Criminal Justice Act,
2003, has modified the operation of autrefois convict, in that
Part 10 thereof allows for retrial in the cases of serious offences
scheduled therein, in the event of 'new and compelling' evidence
against the acquitted person in relation to the qualifying offence.
H This statute has been emulated by legislations in New Zealand
UNION OF INDIA & ANR. v. PURUSHOTTAM
861
[VIKRAMAJIT SEN, J.]
and in the Australian States of Queensland, New South Wales,
A
Tasmania, South Australia and Victoria.
9. The Constitution of India charters a contrasting course
in the context of incorporation of the doctrine of double jeopardy
in that Article 20(2) postulates that - "No person shall be 8
prosecuted and punished for the same offence more than
once." This variance from constitutional protections given in
other countries has prompted us to sift through the 'Debates
of the Constituent Assembly' so as to ascertain whether
autrefois convict in preference to the more preponderant
autrefois acquit, was the position intended to be ordained by
C
the drafters of our Constitution. These Debates bear witness
to the fact that it was indeed meditated and intended. The
original proposal was - "No person 'shall be punished for the
same offence more than once". A proposed amendment
whereby the words "otherwise than as proposed by the Code · D
of Criminal Procedure, 1898," was sought to be added, but was
roundly rejected. The suggestion made by Shri Naziruddin
Ahmad was that "the principle should be that a man cannot be
tried again, tried twice, if he is acquitted or convicted by a Court
of competent jurisdiction, while the conviction or acquittal
E
stands effective ... A man acquitted shall also not be liable to
be tried again." (2nd December, 1948). On the next day, the
extracted intervention of Shri T.T. Krishnamachari was
accepted, sounding the death knell for 'autrefois acquit' and
leading to Article 20(2) as it stands today. Shri T.T.
F
Krishnamachari (Madras: General):
"Mr. Vice-President, Sir, the point I have to place before
the House happens to be a comparatively narrow one. In
this article 14, clause (2) reads thus: 'No person shall be
G
punished for the same offence more than once'. It has been
pointed out to me by more Members of this House that this
might probably affect cases where, as in the case of an
official of Government who has been dealt with
departmentally and punishment has been inflicted, he
H
A
B
c
D
E
862
SUPREME COURT REPORTS
[2015] 1 S.C.R.
cannot again be prosecuted and punished if he had
committed a criminal offence; or, per contra, if a
Government official had been prosecuted and sentenced
to imprisonment or fine by a court, it might preclude the
Government from taking disciplinary action against him.
Though the point is a narrow one and one which is capable
of interpretation whether this provision in this particular
clause in the Fundamental Rights will affect the discretion
of Government acting under the rules of conduct and
discipline in regard to its own officers, I think, when we are
putting a ban on a particular type of action, it is better to
make the point more clear.
I recognise that I am rather late now to move an
amendment. What I would like to do is to word the clause
thus: 'No person shall be prosecuted and punished for the
same offence more than once." If my Honourable Friend
Dr. Ambedkar will accept the addition of the words
'prosecuted and' before the word 'punished' and if you, Sir,
and the House will give him permission to do so, it will not
merely be a wise thing to do but it will save a lot of trouble
for the Governments of the future. That is the suggestion 1.
venture to place before the House. It is for the House to
deal with it in whatever manner it deems fit."
10. It would be relevant to mention that modern
F
jurisprudence is presently partial to the perusal of Parliamentary
Debates in the context of interpreting statutory provisions,
although earlier this exercise was looked upon askance. Suffice
it to mention the analysis of the Constitution Bench in R.S.
Nayak vs. A.R. Antu/ay (1984) 2 SCC 183 and in Haldiram
G
Bhujiawala vs. Anand Kumar Deepak Kumar (2000) 3 SCC
250; and particularly Samatha vs. State of Andhra Pradesh
(1997) 8 SCC 191, where Parliamentary Debates were studied
by this Court. It appears to be beyond debate that the framers
of our Constitution were fully alive to the differing and disparate
concepts of autrefois acquit and autrefois convict and
H
UNION OF INDIA & ANR. v. PURUSHOTIAM
863
[VIKRAMAJIT SEN, J.]
consciously chose to circumscribe the doctrine of double
A
jeopardy only to prosecution culminating in a conviction. This
facet of the law has already been carefully considered by the
Constitution Bench in Maqbool Hussain vs. State of Bombay
1953 SCR 730, and we cannot do better than extract the
relevant portions therefrom:
B
7. The fundamental right which is guaranteed in
Article 20(2) enunciates the principle of "autrefois convict"
or "double jeopardy". The roots of that principle are to be
found in the well established ruie of the common law of
England "that where a person has been convicted of an
C
offence by a court of competent jurisdiction the conviction
is a bar to all further criminal proceedings for the same
offence". (Per Charles, J. in Reg v. Miles). To the same
effect is the ancient maxim "Nimo Bis Debet Puniri pro
Uno De/icto", that is to say that no one ought to be twice
D
punished for one offence or as it is sometimes written "Pro
Eadem Causa", that is, for the same cause.
11. These were the materials which formed the
background of the guarantee of fundamental right given in
E
Article 20(2). It incorporated within its scope the plea of
"autrefois convict" as known to the British jurisprudence or
the plea of double jeopardy as known to the American
Constitution but circumscribed it by providing that there
should be not only a prosecution but also a punishment in
F
the first instance in order to operate as a bar to a second
prosecution and punishment for the same offence.
12. The words "before a court of law or judicial
tribunal" are not to be found in Article 20(2). But if regard
be had to the whole background indicated above it is clear
G
that in order that the protection of Article 20(2) be invoked
by a citizen there must have been a prosecution and
punishment in respect of the same offence before a court
of law or a tribunal, required by law to decide the matters
in controversy judicially on evidence on oath which it must
H
A
B
c
D
864
SUPREME COURT REPORTS
[2015) 1 S.C.R.
be authorised by law to administer and not before a tribunal
which entertains a departmental or an administrative
enquiry even though set up by a statute but not required
to proceed on legal evidence given on oath. The very
wording of Article 20 and the words used therein:-
"convicted", "commission of the act charged as an
offence", "be subjected to a penalty", "commission of the
offence", "prosecuted, and punished, accused of any
offence, would indicate that the proceedings therein
contemplated are of the nature of criminal proceedings
before a court of law or a judicial tribunal and the
prosecution in this context would mean an initiation or
starting of proceedings of a criminal nature before a court
of law or a judicial tribunal in accordance with the
procedure prescribed in the statute which creates the
offence and regulates the procedure.
11. Keeping in perspective this exposition of double
jeopardy as postulated in our Constitution, the obiter dicta in
State of Bihar vs. Murad Ali Khan (1988) 4 SCC 655,
expressed en passant by the two Judge Bench does not
E correctly clarify the law, as this view is contrary to the dictum of
the Constitution Bench, which was not brought to the notice of
the Bench.
12. The US Supreme Court has extensively excogitated
F
over the conundrum as to what constitutes a successive
"punishment" for the purposes of attracting Constitutional
protection against Double Jeopardy, under the 5th Amendment.
The Court, in John Hudson v United States, 522 U.S. 93
(1997), affirmed the distinction between civil punishment and
G proceedings and criminal punishment and prosecution, and
held that the Fifth Amendment proscribes two (or more)
successive punishments or prosecutions of a criminal nature
only, and permits civil punishment or proceedings either
preceding or succeeding a criminal prosecution or punishment.
H In the case before the U.S. Supreme Court, John Hudson was
UNION OF INDIA & ANR. v. PURUSHOTTAM
865
[VIKRAMAJIT SEN, J.]
the Chairman of the First National Bank of Tipton and the First A
National Bank of Hammon, and used his position to regain bank
stock he had used as collateral on defaulted loans through a
series of bank loans to other parties. Upon investigation the
Office of the Comptroller of Currency (OCC) found that the loans
were made in violation of several banking statues and
B
regulations. The OCC fined and debarred Hudson for the
violations. Later, he faced criminal indictment in the Federal
District Court for violations tied to those same events. Hudson
objected, arguing that the indictment violated the Double
Jeopardy clause of the 5th Amendment. dverruling United c
States v. Halper, 490 U.S. 436 (1989), wherein the Court had
ruled as unconstitutional successive proceedings taking place
in similar circumstances to Hudson's case, the Court in
Hudson reaffirmed the distinction established between the
"civil" and "criminal" nature of the particular successive D
punishment, in United States v. Ward, 448 U.S. 242 (1980).
The U.S. Supreme Court thus held in Hudson's case that the
Double Jeopardy clause did not preclude his subsequent
criminal prosecution, because the OCC administrative
proceedings were civil, not criminal. Inter a/ia, the civil nature
E
of the punishment was ascertained with reference to the money
penalties statutes' express designation of their sanctions as
"civil". This reference indubitably eases the resolution of the
Double Jeopardy question in the present Appeal. As has been
detailed earlier, Article 20(2) does not. within it imbibe the
principle of autrefois acquit. The Fifth Amendment safeguards,
F
inasmuch as it postulates both autrefois acquit and autrefois
convict, could have been interpreted to prohibit civil punishment
even in the wake of an acquittal in prosecution, but was not
found by the U.S. Supreme Court to do so. A fortiori Article
20(2), which contemplates "prosecuted and punished" thus G
evincing the conscious exclusion of autrefois acquit, palpably
· postulates that the prescribed successive punishment must be
of a criminal character. It irresistibly follows that departmental
or disciplinary proceedings, even if punitive in amplitude, would
not be outlawed by Article 20(2).
H
866
SUPREME COURT REPORTS
[2015) 1 S.C.R.
A
13. In R. P. Kapur
~. Union of India AIR 1964 SC 787
the question before the Constitution Bench was that the
Petitioner therein had been suspended owing to the pendency
of criminal proceedings against him which was challenged on
the anvil of Article 314 of the Constitution. Thus, this decision
B
is not of much relevance for the resolution of the legal nodus
before us, save for the observations that "if criminal charge
results in conviction, disciplinary proceedings are bound to
follow against the public servant is convicted, even in case of
acquittal proceedings may follow where the acquittal is other
c than honourable." However, on this aspect of the law we need
go no further than the recent decision in Deputy General of
Police vs. S. Samuthiram (2013) 1 SCC 598, since it contains
a comprehensive discourse on all the prominent precedents.
This Court has concluded, and we respectfully think correctly,
0
that acquittal of an employee by a Criminal Court would not
automatically and conclusively impact Departmental
proceedings. Firstly, this is because of the disparate degrees
of proof in the two, viz. beyond reasonable doubt in criminal
prosecution contrasted by preponderant proof in civil or
E
departmental enquiries. Secondly, criminal prosecution is not
within the control of the concerned department and acquittal
could be the consequence of shoddy investigation or slovenly
assimilation of evidence, or lackadaisical if not collusive
conduct of the Trial etc. Thirdly, an acquittal in a criminal
prosecution may preclude a contrary conclusion in a
F
departmental enquiry if the former is a positive decision in
contradistinction to a passive verdict which may be predicated
on technical infirmities. In other words, the Criminal Court must
conclude that the accused is innocent and not merely conclude
that he has not been proved to be guilty beyond reasonable
G doubt.
14. Indeed, it appears to us that the case in hand falls in
the passive category since the Respondent has been let-off
incorrectly on technicalities, and that too, on a very implausible
H and debatable if not specious opinion of the JAG Branch. A
UNION OF INDIA & ANR. v. PURUSHOTTAM
867
[VIKRAMAJIT SEN, J.]
Summary Court Martial was held on 11th April, 2002 in which
A
Lt. Col P. Bhutani was present as the 'friend of the Accused;
aJong with JC M. Sub KC Manocha as the Interpreter. At the
Arraignment the Accused/Respondent pleaded guilty of both
charges. It has been certified by the Court that the Respondent
had been explained the meaning of the charges and that he
B
understood them as also the effect and consequences of his
having pleaded guilty. In the Summary of Evidence four
witnesses were questioned, one cross-examined and this
opportunity was declined by Respondent for the. others. After
advising due caution the Accused/ Respondent gave a detailed
C
statement. It was the opinion of the Reviewing Officer that Army
Ru1e 116(4) required the 'Guilty' plea to be altered to 'Not Guilty'
predicated on the unsubstantiated and unsustainable
conclusion that the Respondent did not understand the effect
of the former. Premised on this conclusion, his recommendation o
was for setting aside the proceeding and sentence of 'reduction
to rank of Naik' and also directing that the accused be relieved
of all consequences of the Trial. Curiously enough, the
Reviewing Authority also opined: "Notwithstanding the ibid,
setting aside due to incorrect framing of charge and
E
lackadaisical recording of evidence at the Summary of
Evidence, the evidence shows that the accused misused his
position as a member of CMP and misappropriated various
items. Therefore, in my opinion, his conduct renders his
retention in service undesirable. You may accordingly initiate
F
action to progress his case for administrative discharge under
the provisions of Army Rule, 13". It is in this backdrop that we
think it to be illogical to hold the opinion that the Respondent
had earned an honourable acquittal. Consequently, whether on
reliance of the Double Jeopardy principle or on the setting
aside of his punishment, Departmental or Disciplinary G
proceedings ought not to be viewed as precluded. Ironically and
paradoxically, we may comment, the Respondent has been
made vulnerable to a far more stringent action by setting aside
the findings in the Court Martial in that from a comparatively
lenient punishment of being lowered in rank he has been
H
868
SUPREME COURT REPORTS
[2015) 1 S.C.R.
A discharged from service.
B
c
15. Section 121 of the Army Act requires special scrutiny
inasmuch as it specifies that:
121. Prohibition of second trial. -
When any persol)
subject to this Act has been acquitted or convicted of an
offence by a court-martial or by a criminal court, or has
been dealt with under any of the sections 80, 83, 84 and
85, he shall not be liable to be tried again for the same
offence by a court- martial or dealt with under the said
sections.
16. The language immediately distinguishes it from Article
20(2) since it palpably postulates both autrefois acquit and
autrefois convict to a court-martial or a trial by criminal courts,
0
but then restricts the insulation only to a second court-martial
or a dealing under Sections 80, 83, 84 and 85 of the Army Act.
A conjoint perusal of Sections 121, 125 and 126 will clarify that
a simultaneous court-martial and trial by a Criminal Court is not
contemplated. Furthermore, the Army Act is rightly reticent on
E the jurisdiction and powers of criminal courts. Although the
question does not arise before us, we cannot refrain from
ruminating on the vires of Section 126(2) inasmuch as it
postulates primacy to the Central Government of a
determination as to whether the Court Martial or criminal court
F shall have custody of the offender regardless of the decision
of the criminal court. Although Section 127 of the Army Act
stands repealed by the Army (Amendment) Act, 1992 it did not
suffer from the same vice in that the Central Government
possessed the power to grant or desist from granting sanction
for a second/successive trial by a Criminal Court.