By Rahul Deo, CNLU Patna
Editors Note: The doctrine in a way is the rule again double jeopardy. Rule against double jeopardy means that a person cannot be tried for the same offence once again if he has been either convicted or acquitted in the trial relating to same offence. This paper critically evaluates this doctrine in the light of various leading case laws.
Autrefois Acquit and Autrefois Convict are the French terms literally meaning “previously acquitted” and “previously convicted” respectively. These two terms have their origin in the common law where they are accepted as the pleas of autrefois acquit and autrefois convict and these pleas have the effect that the trial cannot go ahead due to the special circumstances that these two pleas depict. Actually, a plea of autrefois acquit means that a person cannot be tried again for an offense for the reason that he has previously been acquitted in the same offense and such a plea can be taken or combined with plea of not guilty.
Similarly, a plea of autrefois convict means that a person cannot be tried for an offense for the reason that he has been previously been convicted in an offense and the same can be combined with the plea of not guilty. However, these two terms are jointly known as the Doctrine of Autrefois Acquit and Autrefois Convict. Actually, this doctrine in a way is the rule again double jeopardy. Rule against double jeopardy means that a person cannot be tried for the same offense once again if he has been either convicted or acquitted in the trial relating to the same offense.
Protection against double jeopardy has been provided by many countries as a constitutional right India being one of them. The other countries include Canada, Israel, Mexico, and U.S. However in this project we will analyze this Doctrine of Autrefois Acquit and Autrefois Convict in special reference to Indian context in the light of the provisions of Code of Criminal Procedure, 1973, Constitution of India and Indian Evidence Act, 1872.
The Constitution of India has provided this protection as a fundamental right under Article 20(2) which provides “No person shall be prosecuted and punished for the same offense more than once”. The same principle has been enacted in section 26 of the General Clauses Act, 1897 and section 300 of the Criminal Procedure Code, 1973. However, these two provisions mentioned later have formed the basis of the incorporation of the protection against double jeopardy as a fundamental right guaranteed by the Constitution of our country. However, this is to be emphasized and the same will be analyzed in the later part of this project that this doctrine has not been a replicate of the forms that exist in the Common Law and the U.S constitution. In a nutshell at this point, it can be just said that the ambit of this doctrine in Indian context quite narrower as compared to other systems.
This project analyses the doctrine in the light of the constitutional provisions, the provisions of the Cr.PC, 1973, Indian Evidence Act, 1872 and at the same time the difference in its ambit, the applicability in the criminal justice system of India.
DOCTRINE OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT IN RELATION TO CRIMINAL PROCEDURE CODE, 1973
The Code of Criminal Procedure, 1973 which is the major procedural law with regard to the criminal cases has incorporated this doctrine which has been provided in section 300 of this code.[i]
“Section 300(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.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of State Government, for any distinct offence for which a separate charge might have been against him at a former trial under sub section (1) of section 220.
(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.
(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.
(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.
(6) Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897 or of section 188 of this code.”
ANALYSIS OF THE STATUTORY PROVISION
The provision was previously mentioned in section 403 of the old code. The section lays down the principle that a person who has been previously acquitted or convicted in any offense cannot be tried for the same offense again i.e. rule against double jeopardy however this protection is not absolute in nature and this thing becomes clear from the detailed analysis of section 300. This rule is actually based on common law maxim nemo debet bis vexari that means a person shall not be brought into danger for one and the same offense more than once. The application of this doctrine in the Indian context is different from that in Common Law and U.S legal system. A detailed study of this section will bring out that the conditions necessary for the application of this provision.
Section 300(1) lays down the proposition mentioned hereunder:
- The accused has been tried by a court of competent jurisdiction.
- He should be acquitted of the offense alleged to have been committed by him or an offense which he might have been under Section 221(1) or for which he might have been convicted under section 221(2).
At the same time, a person cannot be tried for an offense for which he has been convicted previously. With regard to sub-section (1) of section 300 the second trial of a person is barred even if it is not for the same offense, but then if it is based on the same facts for any other offense for which a charge might have been against him under section 221(1) or for which he might have been convicted under section 221(2). Section 221(1) provides that where it is doubtful on the basis of the facts of the case that what offense has been committed, the accused can be charged with all such offenses or any of such offenses; or he may be in alternative charged of having committed any one of the said offenses. Section 221(2) provides that if the accused has been charged with one offense and it appears from the evidence that he committed a different offense for which he might have been charged under the provisions of sub section (1), he may be convicted with the offence which he is shown to have committed, although he was not charged with it.
- An analysis of this section makes it clear that there must be the trial of the accused, that is, hearing and determination on the merits[ii] and for the purpose of the ban to subsequent trial as contemplated by section 300(1) there should have been the trial of the accused and on previous occasion, he must have been convicted or acquitted. If there is no trial then the subsequent trial for the same offence is not barred.[iii]
- However the acquittal or the conviction, in order to be actual defence to the charge must be by a court of competent jurisdiction. If the court which held the first trial was not competent to try the charge put forward in the second trial, this section would have no application. A trial by a court having no jurisdiction in the case is void ab initio and the accused if acquitted is liable to be re-tried for the same offence.
- The person must have been either acquitted or been convicted. It is only then that a person can take the plea of this section in order to bar the second trial for the same offense. Mere discharge of the accused does not amount to an acquittal. A person is said to be discharged when he is relieved from the legal proceeding by an order which does not amount to a judgment. Judgment is the final order in a trial terminating either in conviction or acquittal of the accused. A person who is in law only discharged may be charged again for the same offense if some other testimony is discovered against him; however, a person who is acquitted of a charge can never be put on the trial for the same offense. A discharge leaves the matter at large for all purposes of judicial inquiry and there is nothing to prevent a Magistrate discharging the accused from inquiring again into the case.[iv]
- However in case where a judgment has been passed by a competent court either acquitting or convicting the accused, there so long as the judgment remains in force the person so acquitted or convicted cannot be tried again for the same offense, but where such an order or judgment has been set aside by a Court either on appeal or revision then such a person can again be tried for the same offense because the previous trial is annulled thereby.
- The conviction or the acquittal in the previous case cannot be a bar in the trial of the same person for a different offense based on different facts but on the same evidence. In the case of State of Tamil Nadu v. Nalini [v], there was criminal trial for certain offenses under TADA (now POTA), along with the other offenses under IPC. The subsequent trial for the offenses under TADA based on the same facts was held to be barred and the conviction of the accused in the subsequent trial was set aside.
Trial on separate charges:
Section 300(2) contemplates a situation where a person might have been charged with and tried in accordance with section 220(1) of Cr.PC, 1973. In this case, the person who can be so charged may be tried once again even after the order of the conviction or acquittal in the previous case, however with the prior consent of the state government. Section 220(1) provides that if in one series of acts so connected together as to form the same transaction, more offenses than one are committed by the same person, he may be charged with and tried at one trial for, every such offense.
Where a person has been convicted of any offense and a separate charge for another offense could have been made but was not made against him in the formal trial, he should not be liable to be tried again for the other offense as a matter of course because this might lend itself to abuse.[vi] For this reason, the later part of this section envisages the provision that such kind of the second trial can be made only with the prior consent of the State Government. The State Government also is supposed to give its consent after the due consideration of all the facts and circumstances of the case and with the main intendment of the law viz. promotion of justice.[vii]
Section 300(3) envisages a situation where a person is convicted of any offense by an act causing such consequences, that the act together with the consequences constituted a different offense from the one for which he was convicted. In such a situation if the consequences had not happened or were not known to the court at the time when such person was convicted then he may be afterward tried for such an offense.
However, it must be noted in Section 300(3) that the words used are “a person convicted” and does not include acquitted as in the former sub-sections. Therefore this rule does not apply where he has been acquitted. In order to have a better understanding of this point let us take an example where ‘A’ is tried for causing grievous hurt to a person and is convicted. Later it is found that the person to whom grievous hurt was done he died.
Here in this case, ‘A’ may be tried once again separately for the offense of culpable homicide. However let us presume in the same example that ‘A’ was acquitted of the charge of grievous hurt, and then, in this case, he cannot be tried once again if the person later dies, for the offense of culpable homicide under this section. The reason for keeping the acquittal out of the purview of this section can be logically ascertained in the sense that the section provides that later offense for which the person may be tried, is an offense because of the consequences of the former act and the offense constituted by the former act, being taken together. However when a person is acquitted of the former charge then it is quite clear that he is exonerated from the liability of committing that offense, therefore how and why should a person be tried once again for the consequences that have ensued from the act from the liability of which he has been exonerated. This is the possible logical explanation behind the contemplation of this section by the legislature.
Section 300(4) provides that where a person has been acquitted or convicted of any offense constituted by any acts, he may be charged with and tried again for any offence based on the same facts notwithstanding his acquittal or conviction, if the court by which he was previously tried was not competent to try the offense with which he is subsequently charged. To provide a better explanation to the section let us take an example where ‘A’ is tried for robbery by a Judicial Magistrate of the first class. However, he is later charged for the offense of dacoity based on the same facts. In this case, since the subsequent charge of the offense of dacoity is not triable by a Judicial Magistrate of first class and is triable only by the Court of Session, therefore the second trial of such a person irrespective of the fact that whether he has been acquitted or convicted, will not be barred.
Section 300(5) contemplates a situation where a person has been discharged under section 258 of the Cr.PC, 1973. Section 258 provides that “in any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for the reason to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage is made after the evidence of the principal witness has been recorded, pronounce a judgement of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge.”
The section 300(5) provides that where a person has been so discharged under the section 258 he cannot be tried once again for the same offense without the previous consent of the Court which gave such order of discharge or of any other Court to which the former court is sub ordinate. This provision is in order to provide a check against abuse of power of fresh prosecution especially in respect of discharge under the said provisions thus treating it differently from discharges under other provisions of law.[viii]
It should be noted that this section does not apply in case of discharge made in the cases which have been instituted on a complaint. More so an order of discharge under Section 258 can never be regarded as an acquittal for the purpose of section 300(5).[ix] It can be very well be visualized in the explanation appended to section 300 which specifically provides that dismissal of a complaint or discharge of the accused in not an acquittal for the purpose of this section.
Section 300(6) in clear terms provides that “nothing in section 300 shall affect the provisions of section 26 of the General Clauses Act, 1897 or of section 188 of this code.” Section 26 of the General Clauses Act, 1897 provides: “Where an act or omission constitutes an offense 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 offense.” If the accused was acquitted during the first trial on a specific charge such acquittal will not prohibit a second trial on a separate charge for an offense constituted by the same facts under a different enactment.[x] It was held in the case of State of M.P v. Bireshwar Rao[xi]that there cannot be any prohibition to a trial and conviction under section 409 of the IPC in a case where the accused had been tried and acquitted of an offense under Section 52 of the Prevention of Corruption Act, 1947 constituted on identical facts.
RES JUDICATA AND RELEVANCY WITH PROTECTION AGAINST DOUBLE JEOPARDY
The principle of res judicata or in other words principle of issue estoppel does not bar a trial rather it is a rule of evidence according to which, where an issue of fact has been tried by a competent Court on a former occasion and a finding has been reached in favor of the accused, such finding would constitute an estoppel or res judicata against the prosecution, not as a bar to trial and conviction of the accused for a distinct offence, but as precluding the reception of an evidence to disturb the finding of the fact when the accused is tried subsequently even for a different offense which might be permitted by law.[xii]
The maxim Res Judicata Pro Veritate Accipitur signifies that when a matter has been finally resolved by a competent court, the same matter cannot be relitigated once again.[xiii] This is to be noted that this principle has no statutory basis rather it is the creation of judicial interpretation and decisions. The rule is different from the rule against double jeopardy in the sense that res judicata only refers to the admissibility of evidence in a subsequent trial aimed to upset the finding of a fact reached at, by a competent Court in a previous trial. While discussing the principle of res judicata i.e. issue-estoppel the Supreme Court has relied on the famous observations of Lord Mac Dermott in the case of Sambasivam v Public Prosecutor, Federation of Malaya[xiv]in which he said:
“The effect of the verdict of acquittal pronounced by a competent lawful charge and a lawful trial is not completely stated by saying that the person accused cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties for adjudication.”[xv]
The importance of this statement by Lord Mac Dermott lies in the fact that when an acquittal is ordered by a competent Court then it not only acts as bar to the further trial of the person so acquitted for the same offence, at the same time the findings of the Court during the trial in which the person was acquitted on the basis of the evidence adduced, are binding and no evidence can be given to upset the finding of such court in any subsequent trial of the same person, however for a different offense. The conditions for the applicability for the rule of issue estoppel are mentioned hereunder:
- The parties in the two trials must be the same
- The fact in issue proved or not proved must be identical with the one in the previous case
However it should be seen that the rule of issue estoppel has not got any direct statutory recognition in connection with the section 300 of Cr.PC, 1973 but still, it is quite significant and relevant for the reason that this principle is related with the evidentiary aspect of the aforesaid section. A blend of doctrine of res judicata and doctrine of autrefois acquit and autrefois convict has been provided in Section 40 of the Indian Evidence Act, 1872.
“The existence of any judgment, order or decree which law prevents any court from taking the cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial.”[xvi] In view of the relation of this section to the doctrine of autrefois acquit and autrefois convict it can be emphasized that where a person is tried for an offense wherein he is either convicted or acquitted, in case of his being tried subsequently for the same offense, the evidence of the previous trial will be admissible under section 40 to prevent such person from being so tried.
However, regarding the benefit of the doctrine of res judicata a point to be pondered over is that it is only the accused who has been given the benefit that he can use the findings of the competent Court as an estoppel in his further trial. The prosecution has not been given any such freedom where a fact found by a court against the accused in the former trial may be established by the rule of res judicata or issue estoppel in the subsequent trial.
ARTICLE 20(2) vis-à-vis SECTION 300 OF Cr.PC, 1973
The Constitution of India incorporates protection against double jeopardy by including as a fundamental right under the Article 20(2) which provides, “No person shall be prosecuted and punished for the same offense more than once”. This article in clear terms incorporates the rule against double jeopardy. It should be noted that the existence of this law in India was prior to the enactment of our Constitution in form of enactment under Section 26 of the General Clauses Act, 1897. However, after incorporation in the constitution, this protection has become a Constitutional guarantee in form of a fundamental right rather than just being a statutory right. This is to be emphasized that the rule against double jeopardy is an import from the common law system which recognizes a legal maxim “Nemo debet bis vexari” meaning thereby a person cannot be put in peril twice for the same offense.
More so the 5th amendment of the American Constitution declares that no person shall be put twice in the jeopardy of life or limb. The background for the recognition of this rule as a fundamental right was created by the already prevailing statues in India such as the Section 300 of Code of Criminal Procedure, 1973 (section 403 of the old code) and as already mentioned section 26 of the General Clauses Act, 1897. However at this point is must be emphasized at this point of time that this provision in the Indian context is in distinction with that provided in the other statutes such as section 300 of Cr.PC, 1973, and General Clauses Act, and at the same time with that prevailing in the common law countries and U.S.
As per the judicial interpretation in our country Article 20(2) incorporates only the rule of autrefois convict and not autrefois acquit. It provides that if a person has been prosecuted and punished then he cannot be prosecuted for the same offense once again. The rule is in distinction with the American provision in the sense that there irrespective of the consequence of prosecution whether it results in the conviction or acquittal, a person cannot be tried again for the same offense. The common law principle is also the same. However, the Article 20(2) is different in the sense that in order to bring a case under the 20(2) to bar a second trial it must be shown that the person has been prosecuted before a court and has been punished by it for the same offense. Both punishment and prosecution should co-exist for Art.20 (2) to be operative. A prosecution without punishment would not bring the case within the Art. 20 (2). If a person has been prosecuted for an offense but acquitted, then he can be prosecuted by the same offense once again and punished.[xvii] The Supreme Court in the case of State of Bombay v. S.L Apte[xviii] has explained the legal position of the Art. 20 (2):
“To operate as a bar the second prosecution and the consequential punishment thereunder, must be for the ‘same offence’. The crucial requirement therefore for attracting the Article is that the offences are the same, i.e. they should be identical. If however the two offences are distinct then notwithstanding that the allegation of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked. It is therefore, necessary to analyze and compare not the allegations in the two complaints but the ingredients of the two offences and see whether the identity is made out….”
Another important ingredient of Article 20 (2) is ‘prosecution’. Though not mentioned specifically, it has been read that the prosecution 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 the law to administer, and not before a tribunal which entertains a departmental or administrative inquiry, even though set up by a statute, but not required to proceed on legal evidence given on oath.[xix]
However, from the analysis of the constitutional provisions, it is quite clear that Article 20 (2) contemplates only the doctrine of autrefois convict. Now when Section 300 of the Cr.PC is read in light of the Constitutional provision under Art.20 (2) prima facie it appears to us that both the provisions stand, though not completely but partially in contradiction with each other. Where on one hand Art.20 (2) provides a bar to the second trial only in case of previous conviction, Section 300 of Cr.PC prima facie contemplates a situation where the second trial of a person will be barred for the same offense for either reason i.e. convicted or acquitted.
All the subsections of Section 300 except sub section 3 specifically lay down that both conviction and acquittal act as a bar to the subsequent trial of the same person in various circumstances. In such a situation I find the statutory provision of Cr.PC and the Constitutional mandate in conflict with each other. However, this is known that in any circumstance any Constitutional provision will prevail over other statutes. More so a possible reason that I am able to figure out is the time gap between the enactments of the statutory provision of Cr.PC and that of the Constitutional provision. No doubt the principles of autrefois acquit and autrefois convict which were pre-existing in the old Cr.PC as well as the General Clauses Act, 1897 formed the basis for incorporation of this as a fundamental right when the Constitution was enacted in India, though with some reservations which limit the ambit and scope of the doctrines.
The doctrine of Autrefois acquit and Autrefois convict has been included as a fundamental right in our Constitution, though the purview of the doctrine is narrower than in other statutes like Cr.PC, General Clauses Act, and that in other countries like U.K, U.S. However it is clear that in such circumstances the Constitution shall prevail. To conclude it can be said that this doctrine is a safeguard and acts as a valve against the unlawful prosecution of a person for the same offense for the second time. The pleas of autrefois acquit and autrefois convict are one of the preliminary pleas to bar any trial. As we have already analyzed in the whole project that the rule of issue estoppel is also related to the doctrine but even then this rule has not been incorporated in the code as it was thought to be not advisable to do so at present. According to the law commission our Supreme Court and High Court have not had proper opportunity yet of considering all the implications of the rule and any hasty legislation may by its rigidity create difficulties.[xx]
Formatted on 1st March 2019.
[i] Section 300, Code of Criminal Procedure, 1973
[ii] Ratanlal and Dhirajlal, The Code of Criminal Procedure,17th edn, p.568
[iii] Lal Bhanji v. State of Maharashtra, AIR 1979 SC 94
[iv] Ram Sharma v. Pinki Sharma, 1989 Cr LJ 2153(Pat)
[v] AIR 1999 SC 2640
[vi] Joint Committee Report, p.xxii
[vii] Inguva Mallikarjuna Sharma v. State of A.P, 1978 Cri LJ 392
[viii] Sarkar, Code of Criminal Procedure, 9th edn, p.1251
[ix] Ratanlal and Dhirajlal, Commentary on Criminal Procedure Code, 18th edn(enlarged), p.993
[x] Rasul v. State of Mysore, AIR 1959 Mys 136
[xi] AIR 1957 SC 592
[xii] Kelkar,R.V, Criminal Procedure, 5th edn, p. 505
[xiii] Krishnamachari,V, Law of Evidence, 6th edn, p.270
[xiv] 1950 AC 458 (PC)
[xvi] Section 40, Indian Evidence Act, 1872
[xvii] Jain,M.P, Indian Constitutional Law, 5th edn, p.1060
[xviii] AIR 1961 SC 578
[xix] Jain,M.P, Indian Constitutional Law, 5th edn, p.1062
[xx] 41st Report, p.256, para 30:6