Double Jeopardy – CrPC Notes

This is the right of a person to not be tried for the same offence twice. There are three provisions in Indian law that deal with this. It is based upon the common law principle of ‘nimo bis in idipsum’ which means that no man ought to be punished twice for the same offence.

Autrefois acquit – if a person is charged and subsequently acquitted of the offence, he cannot be put on trial for the same offence again (embodied in S.300, not Art.20(1))

Autrefois convict – if a person is prosecuted and punished for a particular offence, he cannot be put on trial for the same offence again. (embodied in both, Art.20(1) and S.300)

Article 20(2), Constitution of India

“No person shall be prosecuted and punished for the same offence more than once.”

A limitation read into Art. 20 (2) is that the former ‘prosecution'(which indicates that the proceedings are of a criminal nature) must be before a court of law, or a judicial tribunal required by law to decide matters in controversy judicially on evidence and on oath which it must be authorized by law to administer, and not before a tribunal which entertains a departmental or administrative enquiry, even though set up by a statute, but not required to proceed on legal evidence given on oath. It is thus established that action taken by a quasi-judicial body does not bar a latter prosecution before a court. Thus, immunity against a second prosecution has become confined to a situation when the first proceeding has been before a court of law. The same will be the position when after ‘prosecution and punishment’ for an offence, further action is taken by a quasi-judicial body.

It also only refers to autrefois convict as it limits the applicability of the plea to a person who has been prosecuted and punished previously.

Section 300, CrPC

“(1) A person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under subsection (2) thereof.”

What does this mean?

• If a person is convicted or acquitted by a court of competent jurisdiction, he cannot be tried for the same offence.
• If charge has been made against a person under sub – section (1) of 221 and the facts are the same and he has been charged under sub -section (2) of Sec. 221 then he cannot be tried on the same facts. Of course this holds true only till the conviction or acquittal remains in force.
• “Tried” does not mean tried on merit. It just has to be an acquittal of the accused.
• The basic rule is that the offences should be same i.e. identical. It is therefore necessary to analyse and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. 300 bars the trial for same offences and not different offences which may result from the commission or omission of the same set of acts. Where the legislature provides that on the same facts proceedings could be taken under two different sections and the penalties provided under those sections are also different, it is obviously intended to treat the two sections as distinct.

“(2) A person acquitted or convicted of any offence afterwards tried with the consent of ore State Government for any distinct offence for which a separate charges have been made against him at the former trial under sub-section (1) of section 220.”

What does this mean?

• Where a person has been acquitted or convicted of any offence and a separate charge for another offence could have been made but was not made against him in the former trial, he should not be liable to be again prosecuted for the other offence as a matter of course because this might lend itself to abuse.
• To provide a check against such abuse, 300 (2) makes it obligatory to obtain the consent of the State Government before a new prosecution is launched against any person for any distinct offence for which a separate charge might have been made against him at the formal trial under Sec. 220 (1).
• Where the charge on the second trial is for a distinct offence the trial is not barred i.e. the section permits a trial for a distinct offence.

“(3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned offence, if the consequences had not happened or were not known to the court to have happened, at the time when he was convicted.”

What does this mean?

• This section is applicable only in cases of conviction and not in cases where there has been an acquittal.
• This section allows the re-trial of an accused for acts which did not come to light in front of the court of prior conviction.
• A conviction simply in itself does not bar re-trial of the accused for similar offences which were not bought to the notice of the courts. The facts or the circumstances must be such as to indicate a different kind of offence of which there could be no conviction at the first trial. The new evidence must constitute a different kind of offence for which the accused could not have been tried at the first trial. The new facts or consequences must have occurred since the conviction or acquittal at the first trial. For, if the new facts or consequences were known to the court at the time of the first trial, a second trial for the offence constituted by the new facts would be barred.

“(4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged.”

What does this mean?

• If any court is incompetent to try an accused of any offence which is the consequence of an offence for which he has already been convicted or acquitted, the prior acquittal or conviction would not act as a bar to the proceedings for the consequential offence as the court could not have possibly tried the accused of that offence.

“(5) A person discharged under section 258 shall not be tried again for the same offence except with the consent of the court by which he was discharged or of any other court to which the first-mentioned court is subordinate.”

What does this mean?

• In a summons case instituted otherwise than upon a complaint the court has got power under 258 to stop the proceedings at any stage without pronouncing the judgment. If the stoppage of proceedings is made before the recording of the evidence of the principal witness, it shall have the effect of discharge of the accused person.
• However, according to 300 (5) such accused person cannot be tried again for the same offence without the consent of the concerned court. It is believed that this provision will be helpful as a safeguard against the abuse of power of fresh prosecution in such cases.

“(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 (10 of 1897) or of section 188 of this Code.”

What does this mean?

• When S.26 applies, S.300 is not required.
• For S.26 to operate, the offences have to have the same ingredients.
• More on S.26 in the next section.

“Explanation: The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.”

These pleas are taken as a bar to criminal trial on the ground that the accused person had been once already charged and tried for the same alleged offence and was either acquitted or convicted. Therefore, it encompasses the plea of autrefois acquit as well.

Section 26, General Clauses Act

 “Provision as to offences punishable under two or more enactments – Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.”

Although, the above Sec. 26 refers to “acts and omissions constituting an offence under two or more enactments”, the emphasis is not on the facts alleged in the two complaints, but rather on the ingredients which constitute the two offences with which a person is charged. This is obvious from the concluding portion of the section which refers to “shall not be liable to be punished twice for the same offence”. If the offences are not the same but are distinct, the ban provided by Sec. 26 cannot be imposed.

Kolla Veera Raghava Rao v. Gorantla Venkateswara Rao

Issue:

Whether a person can be prosecuted under the same facts, but for a different offence under a different statute? (Difference between Article 20(2) of the Constitution of India, 1949 and Section 300(1) of the Indian Penal Code)

Decision: Prosecution barred as Art.20 (2), Constitution of India, 1949- . Protection in respect of conviction for offences (2) No person shall be prosecuted and punished for the same offence more than once.

Section 300(1), IPC- Person once convicted or acquitted not to be tried for same offence-

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under Sub-section (1) of Section 221 or for which he might have been convicted under Sub-section (2) thereof.

Difference between Article. 20 (2) and Sec 300 (1)

The Sec is wider in the sense that it says that no one can be tried and convicted for the same offence or a different offence ON THE SAME FACTS.

While Art 20(2) may leave a lingering doubt in our minds as to whether a person can be prosecuted for the same offence on different facts, the Sec makes it clear that as long as the facts are same, the person cannot be prosecuted at all.

Monica Bedi v. State of Andhra Pradesh

Facts:

1) Monica Bedi obtained a second passport in the assumed name of Sana Malik from the regional passport office in Secundarabad by submission of false documents such as residence proof, educational certificates etc. This was done with the help of accused no.4 to accused no. 7.

2) This passport was used to travel to Portugal and Lisbon.

3) The accused has been convicted under s. 419,420 and 120 B of IPC for the above mentioned offence.

4) Monica Bedi was convicted under section 256 of the IPC of Lisbon and served a part of her sentence.

Issues:

Was the convict entitled to the protection u/Art. 20(2) of the Constitution and S. 300 of the CrPC?

Decision:

The Judgment and sentence passed against Monica Bedi is not violative of Article 20(2) of the Constitution and s. 300 of CrPC.

Article 20(2) of the Constitution states that, “No person shall be prosecuted and punished for the same offence more than once”. This provision finds its roots in the common law principle that man shall not be brought into danger for one and the same offence more than once.Section 300 of the CrPC also embodies the same principle. It is important to note that the ban against second prosecution under s. 20(2) of the Constitution and s. 300 of CrPC can be attracted only when a person has been a) prosecuted and b) punished c) for the same offence.

Thus, there must be prosecution and punishment for the same offence. If the offences are distinct there can be no ban on second prosecution. In the case of State of Rajasthan v. Hat Singh it was held that if the same facts give rise to two distinct offences, then there can be no ban on second prosecution under s. 20(2) of the Constitution and s. 300 of CrPC.

In the present case, Monica Bedi was convicted in Lisbon u/s 265 of the IPC of Lisbon. However, it cannot be accepted or admitted that she was convicted for the offence of forgery of documents in Lisbon for which she was convicted under the IPC in India. Thus, same set of facts is giving rise to two distinct offences and therefore the ban of Art. 20(2) of the Constitution and s. 300 of CrPC is not applicable.

Institute of Chartered Accountants v. Vimal Surana

Facts:

A gentleman is found to be impersonating a Chartered Accountant and extracting money and entering into agreements with people. Therefore, he is culpable under Sections 24 and 26 of the Chartered Accountants Act. However, he is also liable to be punished under Sections 419, 420, 465, 467 and 473 read along with the sections of the Act.

Issues:

Whether the provisions contained in Sections 24, 24A and 26 of the Chartered Accountants Act, 1949 (for short, `the Act’) operate as a bar against the prosecution of a person who is charged with the allegations which constitute an offence or offences under other laws including the Indian Penal Code (IPC).

Holding:

A person can be convicted for the same actions under different acts as are applicable to the offences. The court recognised the inequality if someone who had committed an offence similar to the sections under the IPC but could also fall under the law in another act with lesser punishment.

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