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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 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 member of the Army subsequent to Summary Court Martial proceedings against him on the same or similar charges having been 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 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 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. 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 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 service in time of war or public danger; nor shall any 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 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. 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 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, 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 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.

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 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 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 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 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. Krishnamachari (Madras: General):

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 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 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 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. In the case before the U.S. Supreme Court, John Hudson was the Chairman of the First National Bank of Tipton and the First 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 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. Overruling United 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 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 alia, the civil nature 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, 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 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).