1. This is an application for the issue of a Writ of Prohibition or any other appropriate order against the respondents invoking our jurisdiction under Article 226 of the Constitution of India. The facts that have been set out by the petitioner are that he was charged under Section 409, I.P.C. and convicted. On appeal the Sessions Judge quashed the conviction of the petitioner and acquitted him for want of sanction.
Subsequently the prosecution after obtaining the necessary sanction filed a second charge sheet on the same facts. The petitioner submitted before the trial Court that the second prosecution was barred under Section 403, Cr.P.C. and the trial Court held that inasmuch as no sanction had been produced at the time when the previous trial commenced there was nothing to bar a second prosecution. The trial of the case, therefore, proceeded.
2. The contention of the petitioner before us is that the second prosecution was illegal under Article 20(2) of the Constitution. It is urged that the petitioner on a prior occasion was prosecuted and punished and having regard to the express terms of Article 20(2) of the Constitution a second prosecution was incompetent. The Article referred to above which appears in Part III of the Constitution relating to fundamental rights reads as under:
No person shall be prosecuted and punished for the same offence more than once.
This particular clause is analogous to a provision in the 5th amendment to the Federal Constitution of the United States of America. This embodies the fundamental principle that no one shall be put in jeopardy twice for the same offence and this principle is based upon the Common Law Rule as well as the principle secured by Constitutions of different States, the main principle being that a person shall not be put to harassment a second time where the criminal law has been set in motion against him and he has been punished.
The question that we have to consider in this case is as to whether the petitioner who was discharged by the Sessions Court for want of proper sanction could be regarded as one who had been convicted and sentenced.
3. It may be straightway pointed out that an appeal against an acquittal or an appeal against a conviction is in substance a continuation of the proceedings of the trial Court. Their Lordships of the Supreme Court in the case of Sm. Kalawati v. State of Himachal Pradesh : 1953CriLJ668 , held that an appeal against acquittal is in substance a continuation of the prosecution and Article 20(2) is no bar to a conviction, on appeal against acquittal.
It is essential for the operation of Article 20(2) of the Constitution that the person who wants to get the benefit of this provision should be prosecuted as well as punished. The words therein are 'prosecuted and punished'. The words are conjunctive. It would not do if he was merely prosecuted and not punished.
It was urged by the learned advocate for the petitioner that the petitioner, after the conviction by the trial Court and before the matter was disposed of by the Sessions Court, had undergone some portion of the sentence of imprisonment; therefore, having undergone punishment he could not again be prosecuted and punished. An accused obtaining a reversal of the order of the trial Court on appeal is estopped from pleading previous conviction although the accused at the time of the reversal had served out a part of his sentence.
In this connection we might advert to the case of Clarence Murphy v. Massachusetts (1900) 177 U.S. 155 (B). Willis in his Constitutional Law, dealing about the phrase 'jeopardy of life or limb' says
the protection is not against a second punishment but against the peril in which he is placed by jeopardy mentioned'. Willis on Constitutional Law of the United States, p. 528.
We may also point out that a plea of former jeopardy cannot be maintained where a former conviction of the accused for the same offence was based upon an indictment which has been found defective.
The prosecution of the petitioner, in our opinion, without a proper sanction was a nullity and therefore the former prosecution and conviction would not be a bar to a subsequent prosecution. In this view we are supported by the decision of their Lordships of the Privy Council in Yusofalli Mulla v. The King 1949 PC 264 AIR V 36 (C). A similar view was held by the Federal Court in the case of Basudeo Agarwalla v. Emperor 1945 F. C. 16 AIR V 32 (D).
4. The learned advocate for the petitioner drew our attention to a decision of the Allahabad High Court in Shri Ram Ghei v. Shri Ram Kishan Das : AIR1952All642 . In this case four persons were charged under Section 420, I.P.C. and the complaint was dismissed on account of the absence of the complainant and his counsel. A second complaint was filed on the same allegations.
It was clearly held in this case that a second complaint after the dismissal of the first one for complainant's absence was not in contravention of Article 20(2) of the Constitution. Therefore, in our opinion, this case cannot help the petitioner. The other case to which our attention was invited was the case decided by the Supreme Court on 17-4-1953 the case of Maqbool Hussain v. State of Bombay : 1983ECR1598D(SC) .
This was a case where the Supreme Court held that the Sea Customs Authorities were not a judicial tribunal and as such any punishment by them would not bring the case within the ambit of Article 20(2) of the Constitution, to constitute double jeopardy. This case also, in our opinion, is not relevant and cannot be relied upon. In case before us the former proceedings were no doubt before a criminal Court but that Court could not proceed with the trial for the simple reason that there was not the requisite sanction.
As has been observed above, the defect in the procedure which made the conviction void would not be a bar to a subsequent prosecution. We desire to make it clear that where the indictment or information or prosecution is defective in form or substance the proceedings taken under such information or prosecution would not avail the accused to claim the benefit of the principle 'autrefois convict'.
5. For the above reasons we are of opinion that this writ petition should be dismissed. It is, therefore, dismissed with costs. Advocate's fee Rs. 50 (rupees fifty only).