THE STATE OF BOMBAY versus S. L. APTE & ANOTHER

Citation: [1961] 3 S.C.R. 107 · Decided: 09-12-1960 · Supreme Court of India · Bench: BHUVNESHWAR PRASAD SINHA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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3 S.C.R. SUPREME COURT REPORTS 
107 
on land on which a forest stands is permissible and 
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legal. 
If. T. Jf oopil 
For these reasons I would dismiss these petitions. 
Nafr 
. 
v. 
· BY COURT:-In accordance with the opinion of Sl•I• of Kerala 
the majority of the Court, these Petitions are allowed 
with costs against the contesting Respondent, the 
Sarkar J. 
State of Kerala. 
Petitions allowed. 
THE STATE OF BOMBAY 
v. 
S. L. APTE & ANOTHER 
(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR, 
N. RAJA.GOPALA AYYANGA.R and 
J. R. MUDHOLKA.R, JJ.) 
Double Jeopardy-Rule-" Same offence" -Test-Constitution 
of India, Art. zo(z)-General Clauses Act, I897 (Io of I897), s. a6 
-Indian Penal Code, I86o (XLV of I86o), s. 409-Insurance 
Act, I9J8 (IV of I938), s. w5. 
By Art. 20(2) of the Constitution "No person shall be prose-
cuted and punished for the same offence more than once." 
Section 26 of the General Clauses Act, 1897, provides,-
"Where an act or omission constitutes an offence under two or 
more enactments, then the offender shall be liable to be pro-
secuted and punished under either or any of those enactments, 
but shall not be liable to be punished twice for the same offence." 
The respondents were both convicted and sentenced by the 
Magistrate under s. 409 of the Indian Penal Code and s. 105 of 
the Insurance Act. The Sessions Judge on appeal upheld the 
conviction and sentence under s. 409 of the Indian Penal Code, 
but set aside the conviction and sentence under s. 105 of the 
Insurance Act on the ground that no sanction under s. 107 of 
the Insurance Act had been obtained. Sanction was thereafter 
obtained and a fresh complaint was filed against the respondents 
under s. 105 of the Insurance Act. The trial ended in an acquit• 
ta! by the Magistrate who held that Art. 20(2) of the Constitu-
tion and also s. 26 of the General Clauses Act were a bar to con-
viction. The State appealed to the High Court against the 
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December 9. 
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Th~ State of 
Bombay 
v. 
S. L. Apte 
& AnotheY 
Ayyangar ]. 
108 
SUPREME COURT REPORTS 
[1961] 
order of acquittal but the appeal was dismissed. On further 
appeal by the State, 
Held, that the crucial requirement to attract Art. 20(2) of 
the.Constitution is that the two offences should be identical. It 
is, therefore, necessary to analyse and compare the ingredients 
of the two offences, and not the allegations made in the two com-
plaints, to see whether their identity is established. 
So judged, there can be no doubt that in spite of the presence 
of certain common elenients bet\\'een the t\\-·o, the offences under 
s. 409 of the Indian Penal Code and s. ro5 of the Insurance Act 
are distinct in their ingredients, content and scope and cannot be 
said to be identical. 
Om Prakash Gupta v. State of U. P., [1957] S.C.R. 42~_and 
State of Madhya Pradesh v. Veereshwar Rao Agniholry, [1957] 
S.C.R. 868, referred to. 
A similar view of the scope of the rule as to double-jeopardy 
has always been taken by the American Courts. 
Albrecht v. United Stales, (1927) 273 U.S. l: 71 Law Ed. 
505, referred to. 
In s. 26 of the General Clauses Act also the emphasis is not 
on the facts alleged in the two complaints but on the ingredients 
of the two offences chai6ed. 
This construction of Art. 20(2) of the Constitution ands. 26 
of the General Clauses Act, 1897, is preci'fly in line withs. 403(2) 
of the Code of Criminal Procedure. 
Consequently, it could not be said, in the instant case, that 
the respondents were being sought to be punished for the same 
offence so as to attract either Art. 20(2) of the Constitution or 
s. 26 of the General Clauses Act, 1897. 
CRIMINAL APPELLATE 
-JURISDICTION: 
Criminal 
Appeal No. 63 of 1957. 
Appeal from the judgment and order dated March 
2, 1956, of the Bombay High Court in Cr. A. No. 1258 
of 1955. 
H. R. Khanna and R. H. Dhebar, for the appellant. 
N. S. Bindra, for the respondents (Amicus curiae). 
1960. December 9. 
'l'he following Judgment of 
the Court was delivered by 
AYYANGAR, J.-'l'his appeal on a certificate under 
Art. 134(1) of the Constitution granted by the High 
Court of Bombay, principally raises for consideration 
the application and scope of Art. 20(2) of the Consti-
tution and s. 26 of the General Clauses Act. 
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3 S.C.R. SUPREME COURT REPORTS 
109 
The facts necessary for the appreciation of the 
points involved in this appeal are few and may be 
briefly stated. The two respondents-S. L. Apte and 
Miss Dwa
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