This article has been written by Shivani. A. This article deals with Section 300 of the Criminal Procedure Code, 1973. It provides a complete overview of the provision and also sheds light on the meaning, history and analysis of the principle of double jeopardy. The article also aims to cover the principles in other countries as well. It also consists of various important judicial pronouncements pertaining to the given principle.

It has been published by Rachit Garg.

Table of Contents

Introduction 

“Punishment is not for revenge, but to lessen crime and reform the criminal”- Elizabeth Fry. In India, we believe that punishment is essential to reforming a criminal and providing justice to the victim. There is a principle in criminal jurisprudence that prevents a person from getting punished twice for the same offence. This is because the main objective of punishing an offender gets fulfilled after the completion of the term of the punishment at the first instance, and punishing the person for the second time is considered to be against the right to life and liberty given under Article 21. This principle of not punishing the offender more than once is known as the “principle of double jeopardy.” This principle is present under Article 20(2) of the Constitution of India and Section 300 of the Criminal Procedure Code  (the Cr.P.C.). However, the principle of double jeopardy is exclusively used in criminal courts, and does not prohibit defendants from being charged in a civil court for the same offence. The origin, essentials, various provisions pertaining to double jeopardy, circumstances under which this doctrine cannot be applied, international perspective with other nations, difference between the Section 300 of the Cr.P.C and Article 20(2) of the Constitution and case laws are all covered in detail in this article.

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Concept of double jeopardy 

Meaning of double jeopardy

This principle can be traced back to the maxim “nemo debet bis vexari pro una et eadem causa,” which means that a man shouldn’t be vexed twice for the same offence. This principle has been incorporated into the laws of many countries. It is a very important principle, as it helps to uphold justice by preventing the hardship caused by the re-litigation of offenders.

The meaning of double jeopardy can be ascertained by looking into the following provisions. According to Black Law’s dictionary, double jeopardy means, “the fact of being prosecuted or sentenced twice for substantially the same offence.”. This concept has also been provided under Article 20(2) of the Constitution of India and Section 300 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C). These provisions have expressly prohibited multiple convictions of a single offender regarding the same offence.

History of double jeopardy

The history of this principle dates back to the 12th century. During this period, there were two courts – royal and ecclesiastical. This led to a conflict between Henry II and Archbishop Thomas Becket, as the king wanted the clergy to be punished in the royal court even after the ecclesiastical court punished him. But Becket relied on St. Jerome’s interpretation of Nahum and claimed that the act of the king would be against the principle laid down in the maxim “nimo bis in idipsum” which means that no man can be punished twice for the same offence. As a result of this, the concession that was granted by the King laid the foundation for the principle of double jeopardy.  

This principle can also be found in Article 360 of the Napoleonic Code, that is, “the code d’instruction criminelle”. It stated that “No person legally acquitted cannot be arrested for the same offence committed by him for the second time.” References to the principle of double jeopardy can also be found in the Spanish law of the thirteenth century. However, the first judicial pronouncement of this principle was observed in the UK in the case of Connelly v. Director of Public Prosecutions (1964), in which it was held that “to apply this doctrine of double jeopardy, the accused must be put in peril of conviction for the same offence for which he has already been punished.” 

The concept of double jeopardy was also known to the Greeks as well as the Romans and can also be found in Justinian’s Digest. The principle that they followed was that the Governor should not allow any person to be charged for the same offence for which he has already undergone trial and has also been convicted. The criminal procedure that was then followed was different from the system that we are currently following. They followed a system in which the defendant could be arrested 30 days after his acquittal.

In the Magna Carta, the principle of double jeopardy is not discussed. Also, it is not possible to interpret the same. The English system has adopted this principle from the Canon Law. As early as 847 A.D., the Canon Law provided that no one, not even God, can be judged for the same offence again. This can be incorporated into Roman law through Justinian’s Code.

This principle existed in India even before the Constitution came into force. However, the same has now been given constitutional validity, and it is no longer a mere statutory obligation. The principle of double jeopardy can thus be found in Article 20(2), Part III of the Constitution, that is, fundamental rights. The fundamental rights in the Constitution of India have been adopted from various sources, like England’s Bill of Rights, the United States Bill of Rights, and the French Declaration of the Rights of Man. It is also present in Section 300 of the Criminal Procedure Code.

Conditions for the applicability of the principle of double jeopardy

In three situations, double jeopardy has been stated as a valid defence:

  • The first essential element to claim the defence of double jeopardy is that the person should be accused of a criminal offence. This defence does not apply to civil wrongs, as in civil cases, the doctrine of res judicata is invoked.
  • A case must be filed before a competent court, and the proceedings of the case must have taken place.
  • The decision should be delivered by the court, and the person should either be convicted or acquitted for the offence.
  • The subsequent trial must be the same as the one for which he was previously convicted or acquitted.

Exceptions for the applicability of principle of double jeopardy 

A few exceptions to the principle of double jeopardy exist. The courts have added to the literature of the same through a catena of judicial pronouncements:

  • This principle is not applicable in civil cases. Simultaneous civil proceedings can be instituted against the accused, and he cannot plead the defence of double jeopardy in civil proceedings.

Illustration: Suppose ‘A’ killed ‘B’ in a drunk-and-drive case. Now, ‘B’s family can sue ‘A’ in both civil and criminal courts. When a suit is filed in a civil court, ‘B’s family can only recover the financial damages suffered by ‘B’ due to the act of ‘A’. In such a suit, ‘A’ has to discharge his liability. He is not entitled to claim the defence of double jeopardy when he is prosecuted for the crime committed by him just because he underwent a trial in civil court. This is because, when he underwent a trial in a criminal court, he discharged his liability towards society in general (right in rem). This will prevent him from committing such offences in the future and also serve as a precedent to discourage like-minded people from committing the same act. However, ‘A’ also has to discharge his liability towards ‘B’s family because he killed ‘B’. ‘B’s family has a right in personam against ‘A’ and can hence claim compensation from him by filing a suit against ‘A’ in the civil court.

  • Jeopardy must begin: This means that the defence of double jeopardy can be claimed only when the defendant has undergone some kind of jeopardy. This means that he should have undergone a trial before claiming this defence. It is only after the trial that a person is considered to have undergone jeopardy. This defence can only be claimed after an order of acquittal or conviction and this can be obtained only after the trial.
  • Jeopardy must end: It is not enough for a person to just undergo a trial to claim this offence. The trial should also come to an end and the judges of the case should adjudicate the case in favour of the accused and acquit him from the charges. Only after the judgement of acquittal delivered by the judge, jeopardy is over. 

In the case of, State of Mizoram vs. Dr. C. Sangnghina (2018) the Respondent was charged for corruption in 2013, however, the Special Court dismissed the case due to lack of sanction, even before the commencement of the trial. However, when the case was filed against him in 2018 after acquiring proper sanction, he claimed the defence of double jeopardy.

The Supreme Court held that there was no bar for filing the fresh or supplementary charge sheet against the accused after obtaining valid sanction. This is because, in the instant case, the accused has not been tried, convicted or acquitted and hence, the principles of “double jeopardy” cannot be invoked at all.

Autrefois acquit and autrefois convict 

The words ‘Autrefois acquit’ and ‘Autrefois convict’ are derived from the French language and mean ‘previously acquitted’ and ‘previously convicted’, respectively. These pleas have their origin in common law and can be used as a defence to prevent the trial from proceeding further due to the special circumstances posed by these pleas. The plea ‘Autrefois acquit‘ means that a person cannot be put to trial again for the same offence in which he has been acquitted previously, and such a plea can be taken combined with the plea of not guilty. The plea ‘Autrefois convict’ means that a person cannot be tried again for the same offence for which he was convicted previously. These two pleas together constitute the doctrine of Autrefois Acquit and Autrefois Convict, and this doctrine is embedded in the principle of double jeopardy.

These principles can be inferred from Article 20(2) of the Constitution of India and Section 300 of the Cr.P.C. However, before the Constitution came into force, the same was present in Section 26 of the General Clauses Act, 1897.

Analysis of the doctrine of double jeopardy in light of Section 300 CrPC

As already mentioned above, the doctrine of autrefois acquit and autrefois convict is present in Section 300 of Cr.P.C. A detailed analysis of this section will help us in understanding the doctrine in a better way.

Section 300 of Cr. P.C. is based on the principle that a person cannot be put in danger for an offence for which he has already been previously convicted or acquitted. It puts forth the principle of double jeopardy. However, a clear reading of the section helps us to understand that this rule is not absolute and has certain exceptions to it. This section is also based on the common law maxim “nemo debet bis vexari,” which means that a person shall not be brought into danger for the same offence more than once. A detailed study of this section will help us analyse the conditions necessary for this doctrine to prevail.

Section 300(1) CrPC

Section 300(1) states that, when a person has been tried by a court of competent jurisdiction and has been convicted or acquitted for the same, he should not be put to trial again for the same offence or the same facts or any offence which he has committed under Section 221(1) or he is getting punished under Section 221(2). 

Hence, the essential elements of this subsection are:

  • The person must have been tried by a competent court.
  • The person must have been convicted or acquitted.
  • However, the judgement of conviction or acquittal delivered by the competent court remains in force until it has been set aside by a Court on appeal or revision and then such a person can again be tried for the same offence.
  • The person should have been put to trial for the second time.

Section 221(1) provides that whenever there is doubt in the facts of the case as to the offence for which a person needs to be punished, he can be charged with all such offences or any of such offences, or he may be charged for committing any one of the said offences. Section 221(2) provides that if a person is charged with a particular offence, however, the evidence of the case points at another offence, then he should be punished for the offence that he appears to have committed, even though he is not charged with the same. This section, however, doesn’t prevent the conviction or acquittal of a person for a different offence, which is based on different facts but on the same evidence.

Illustrations:

(a) Let’s say that a person “A” is charged with a crime that could include theft, receiving stolen property, criminal breach of trust, or cheating. In such a case, he might be made guilty of committing all of the following, that is , for receiving stolen property, theft, criminal breach of trust, and cheating, or he could be made liable for committing any of these offences. 

(b) Let’s say that in the aforementioned scenario, “A” is initially just charged with theft, but subsequently, it appears that he also committed the crimes of receiving stolen goods and criminal breach of trust. Despite not having been charged with the crime, he could be found guilty of receiving stolen goods or of criminal breach of trust, depending on the circumstances.

Section 300(2) CrPC

Section 300(2) contemplates a situation in which a person is charged under Section 220(1) of the Cr.P.C. Section 300(2) states that in such situations, the person so charged can be put on re-trial even after the order of conviction or acquittal in the previous case. But, this can be done only with the consent of the state government. Section 220(1) provides that if a single person commits more than one act and the acts so committed are so connected together that they form a single transaction, then he may be tried separately for all such offences. 

In this provision, the term ‘same transaction’ has been subjected to interpretation of the courts in various cases. In the case of Mohan Baitha v. State of Bihar (2001), the complainant , who was the father of the deceased, filed the petition as his daughter was subject to cruelty and as a result, died within 3 years of marriage. The petition was filed in Patna High Court whereas the offence was committed in Uttar Pradesh. The Accused was held liable under Section 304B, 34 and 406 of the IPC.

The Supreme Court observed that “There cannot be a universal formula to determine whether two or more acts constitute the same transaction.” It is evident from the continuity of the activity and the same goal or design that one transaction may have involved the commission of multiple offences. The series of acts charged against the person constitute the same transaction because of the close proximity of time, unity of place, unity or community of purpose or design, and continuity of activity.

Also, in the case of Anju Chaudhary v. State of U.P. (2013), the house of the complainant was on fire and the perpetrator was unknown. Hence, filed multiple FIRs bearing the same facts and the only changes in these FIRs was the value of the things which were damaged due to the fire. Therefore, the court held that there cannot be multiple FIRs or multiple investigations in respect of the same occurrence even though it is giving rise to more than one cognizable offence. In the instant case, these FIRs cannot be considered to be separate FIRs and they constitute the ‘same transaction’. It also observed that in order to consider several offences to be part of the same transaction, the test which has to be applied is whether they are related to one another in point of purpose or of cause and effect, or as principal and subsidiary, to result in one continuous action.

When a person has been tried for an offence and there was a chance to add another offence and to put him to trial for the same in the formal trial, but this chance was not utilised, he should not be liable to be tried again for the other offence as it leads to abuse. Hence, the provision mentions that the consent of the state government is required for the same. Also, the state government shouldn’t exercise this power arbitrarily. Rather, it should be used to provide and uphold justice.

Section 300(3) CrPC

Section 300(3) envisages a situation in which a person is convicted of any offence which is followed by certain consequences. The act done by him, along with the consequences, constituted a completely different offence from the one for which he was initially convicted. In such circumstances, if the court, during the time of conviction of the person, was not aware of such consequences, the person may be tried for such an offence at a later stage.  

However, it is pertinent to note that Section 300(3) uses the phrase “a person convicted” and does not include “acquitted,” unlike the other subsections. Therefore, it can be inferred that this rule does not apply where he has been acquitted. The rationale behind this rule is that the person will be tried for an aggravated form of the offence and thus, he can only be tried if he was found guilty of the earlier offence which was less heinous.

Illustration: ‘A’ is tried and convicted for causing grievous hurt to a person. However, it was later found out that the person to whom ‘A’ caused grievous hurt died. In such circumstances, ‘A’ may be tried once again separately for the offence of culpable homicide, and it doesn’t amount to double jeopardy. However, if, in the above-mentioned illustration, ‘A’ was acquitted of the charge of grievous hurt, he cannot be tried once again if the person dies later on for the offence of culpable homicide under this section. 

Section 300(4) CrPC

Section 300(4) provides that a person can be tried again for the same offence and the same facts, irrespective of whether he was convicted or acquitted in the previous trial if the court that delivered the judgement of the previous trial did not have competent jurisdiction.

Illustration: ‘A’ was prosecuted by a Judicial Magistrate of first class for robbery. However, he was again prosecuted on the same facts. Since the Judicial Magistrate of the First Class has no jurisdiction to try the offence of robbery and it is triable only by the Court of Session, the second trial of the person will not be barred irrespective of whether the person is convicted or acquitted in the first trial. This is because the decision of the court, which had no competency to try a particular case as per Section 26 of Cr.P.C., is considered non-est with respect to Section 300(5).

Section 300(5) CrPC

Section 300(5) states that if a person gets acquitted by a court under Section 258 of Cr.P.C.,  he cannot be put to trial once again for the same offence without the consent of the court that produced such an order of acquittal or of any other court to which the former court is subordinate. This provision is important as it can provide a check against abuse of the power of fresh prosecution. 

In the case of Suo Moto v. State of Kerala and Anr (2018), Ramachandran, former District Police Chief, filed a letter in the Kerala High Court which highlighted various aspects of drug abuse in Kerala. The letter also focussed on the increase in the number of crimes committed by youngsters under the influence of drugs. Hence, the court took suo moto cognizance of the case and observed that, “Section 258 can be invoked only in peculiar and unusual circumstances in cases, wherein no prima facie case is made out against the accused or when the accusation does not constitute an offence or for the reason that the prosecution is bound to fail on account of a technical defect. For the reason that the accused had absconded or that despite the initiation of coercive proceedings, his presence could not be secured is no reason to invoke Section 258 of the Cr.P.C.”

Also, a bare perusal of the provision helps us understand that the provisions of this section do not hold good in cases of discharge or acquittal made in the cases that have been instituted on a complaint. There is a difference between the terms ‘discharge’ and ‘acquittal’ under Cr.P.C. Acquittals prohibit retrials for the same offence with identical circumstances or for any other offence with identical circumstances but with a different charge. If more or better evidence becomes available against the accused, the court may nonetheless proceed with fresh proceedings even after a discharge. Hence, the provision under Section 300(5) makes it clear that if an order of discharge is made under Section 258, it cannot be regarded as an acquittal under Section 300(5). 

Section 300(6) CrPC

Section 300(6) states that nothing that is provided in this Section shall affect the provisions of  Section 26 of the General Clauses Act, 1897 or of Section 188 of the Cr.P.C. Section 26 of the General Clauses Act, 1897, provides that when an act of an accused can be considered an offence under two or more enactments, then the offender can only be prosecuted and punished under any one of the enactments and not under both of them. There is, however, a difference between Section 26 of the General Clauses Act and Section 300 of Cr.P.C. The former provision prevents the retrial of different offences, whereas the latter prevents the retrial of the same offence.

It was held in the case of State of M.P v. Bireshwar Rao (1957), that “a trial and conviction under Section 409 of the IPC cannot be prohibited in a case where the accused had been tried and acquitted of an offence under Section 52 of the Prevention of Corruption Act, 1947, which was  constituted on identical facts.”

Comparative analysis of double jeopardy in other countries

Since the principle of double jeopardy is one of the most essential principles of criminal jurisprudence, it is widely used in countries across the world. Hence, the analysis of this principle in some of the countries is given below.

Double jeopardy in the United States of America

The concept of double jeopardy came into force in America through the Fifth Amendment of the US Constitution which stated that “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”The interpretation of the provision of double jeopardy in America was very narrow, and it was only applicable to the actions of the Federal Government and its subdivisions. However, the scenario changed in 1969 in the case of Benton v. Maryland (1969). In this case, it was held that the doctrine equally applies to both the centre and the states. However, in America, they follow the doctrine of dual sovereignty. This implies that the Fifth Amendment of the Constitution prevents multiple prosecutions under the same sovereignty. Therefore, the principle of double jeopardy in the US doesn’t prevent multiple prosecutions for the same act by independent sovereigns. It means that a person can be punished for the act done by him separately by the federal court as well as the state court and it doesn’t amount to double jeopardy.

The Supreme Court of the US recognised the power of independent sovereigns to punish an individual for an act done by him that falls within the jurisdiction of both the sovereigns in the case of United States v. Lanza (1922). Then, in 1985, the Court further interpreted the dual sovereignty doctrine to incorporate separate punishments by both independent sovereigns in the case of Heath v. Alabama (1985). In this case, the Accused murdered his wife in Georgia and was convicted by the jury in Georgia and subsequently, the jury in Alabama also declared him to be guilty. He contended that the conviction in Alabama was not valid as he was already convicted in Georgia and also that the jury in Alabama had no jurisdiction in the present case. However, the court rejected these contentions by applying the doctrine of dual sovereignty which grants each state the right to try a criminal under the laws of that state, regardless of whether he had already been tried under the laws of another state. Hence, though the Fifth Amendment initially was applicable only to the Federal Government, the Supreme Court has ruled that it applies to both the federal and the state government through the incorporation by the Fourteenth Amendment. 

Double jeopardy in the United Kingdom

Earlier, in the United Kingdom, there were very strict laws to prevent double jeopardy. The doctrines of autrefois acquit and autrefois convict were a part of the common law system ever since the Norman conquest and were considered to be an essential feature to protect the liberty of people and to ensure the practice of due process of law. Hence, the Parliament of the UK passed the Criminal Justice Act, 2003. This was done to dilute the laws of double jeopardy in the UK.

Hence, the strict form of preventing double jeopardy is no longer followed in the UK. Retrials are now possible in case there is new and compelling evidence. However, all these cases are to be approved by the Director of Public Prosecutions. Also, the Court of Appeal must agree to quash the previous acquittal to proceed with the retrial of an individual. Surfacing new and compelling evidence is an exception to the rule of double jeopardy.

Double jeopardy in Australia

The law regarding double jeopardy in Australia is very similar to other common law countries. There are a few statutory provisions regarding the same. Section 17 of the Criminal Code Act provides that a person who has been charged with a crime and has already been tried, convicted, or acquitted should not be made to face the same charge again under. This rule was created to make sure that people who were found not guilty of a crime would not be questioned by the police or faced charges for the same crime in the future. The accused party ought to be permitted to believe that their case has been resolved.

While double jeopardy may be used to claim defence in most criminal offences in Australia, the Criminal Code (Double Jeopardy) Amendment Act 2007 introduced significant changes to this principle. The Court may order an acquitted person to be retried for the offence of murder under Section 678B if it is satisfied that there is new and compelling evidence against the acquitted person in relation to the offence, and the order is in the interest of justice in all circumstances.

However, the people can file an appeal against the order of a trial court. This is because the purpose of the appeal is not to overturn the order of acquittal given by the trial court, and it remains valid. Rather, the appeal is made only to solve any questions of law that couldn’t be answered in the trial court.

Double jeopardy in Canada

The principle of double jeopardy is contained in Section 11(h) of the Canadian Charter of Rights and Freedoms. However, this law applies after a person has been convicted or acquitted. The Canadian law allows a person to file an appeal in the case of acquittal. This will not be considered to be double jeopardy, as the appeal will be considered as the continuation of the same trial. Also, in Canadian law, the court can substitute an acquittal with a conviction in certain rare cases. To successfully convert an acquittal into a conviction, the Supreme Court of Canada needs to prove that there was an error in law and that error led to the verdict.

Double jeopardy in Germany

The Basic Law for the Federal Republic of Germany (Grundgesetz) consists of provisions that protect the principle of double jeopardy. Article 103(3) of this law provides that “Nobody shall be punished multiple times for the same crime based on general criminal law.” In The German Code of Criminal Procedure (Strafprozessordnung), a provision for retrial is only permissible if it is in the favour of the accused or if the following events occur:

  • If a document which was produced by the accused as genuine was found to be false or forged. 
  • If a witness or expert gives testimony or opinion about the accused under oath the same is found to be erroneous.
  • If the judge who drafted the judgement violated any of his official duties to the case. 
  • If the person acquitted confesses in or outside the court, that he committed the criminal offence. 

The Code accordingly provides that the proceedings that were previously decided can be reopened if there are new facts and evidence that are pertinent to the case.

Is Section 300 CrPC different from Article 20(2) of the Indian Constitution 

Even though both Article 20(2) of the Constitution and Section 300 of Cr.P.C. grant protection against the principle of double jeopardy, there are certain differences between the two provisions. On juxtaposing the provisions, the difference becomes clear. Since a detailed analysis of Section 300 of the Cr.P.C. has already been done in the previous heading, it is now pertinent to understand the essentials of Article 20(2).

Article 20(2) states that a person cannot be prosecuted for an offence more than once when he has already been convicted for the same. The essentials for the applicability of this Article are as follows:

  • The accused must be convicted of the offence.
  • The first prosecution must be valid and not null and void.
  • The second trial must not be an appeal or a continuation of the previous trial.

However, there are certain cases which are excluded from the ambit of this Article as they cannot be considered as prosecutions:

  • Proceedings for the confiscation of goods or fine under Section 167 of the Sea Customs Act, 1878.
  • Proceedings before an administrative or departmental tribunal.

In the case of Bhagwan Singh vs. Deputy Commissioner Sitapur (1962), the Petitioner was suspected of gross negligence in pursuance of his job as a clerk. As a result, departmental proceedings were initiated against him and subsequently, he was charged under Section 409 of the IPC. It was held by the court that the departmental proceedings do not come under the ambit of Article 20(2) of the Constitution of India and hence, does not constitute double jeopardy. This is because, the main reason for conducting disciplinary proceedings is to ascertain whether the officer concerned is suitable to continue with the service. On the other hand, the object of a criminal prosecution is to find out whether the act committed by the person concerned has satisfied all the ingredients of the offence as defined in the penal statute. 

There are also certain exceptions to this Article:

  • The provision specified under this article is only applicable to criminal offences and not to civil suits, as the principle of res judicata is applied in civil suits.
  • Also, this clause has no application in cases of different offences arising out of the same facts, as the same is covered under the General Clauses Act.

The differences between the two provisions of double jeopardy have been analysed by the courts in various cases.

It was held by the Supreme Court in Manipur Administration v. Thokehom Bira Singh (1965), that, Article 20(2) of the Constitution is only applicable if the accused is convicted as a result of prosecution, i.e, it embodies the principle of autrefois convict only. However, Section 300 of the Code of Criminal Procedure combines both autrefois acquit and autrefois convict. Section 300 has also widened the scope of Section 300 by preventing a second trial of the accused on the same facts even if the offence is different if the offence is committed by him under Section 221(1) of the Code.

Also, the Supreme Court of India in Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Others (2011), has observed the difference between Section 300 of the Cr.P.C and Article 20(2) of the Constitution. The court held that the scope of Section 300 of the Cr.P.C is wider than that of Article 20(2) of the Constitution. This is because, Article 20(2) of the Constitution provides that a person shall be prevented from undergoing trial for the same offence more than once when he has undergone a trial and convicted for the same. However, Section 300(1) of Cr. P.C states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts irrespective of whether he was convicted or acquitted in the previous trial. This means that Article 20(2) of the Constitution only supports the principle of Autrefois convict whereas Section 300 of the Cr.P.C supports both Autrefois convict as well as Autrefois acquit.

The various differences between the two provisions are listed in the following table:

Article 20(2) of the ConstitutionSection 300 CrPC
Article 20(2) states that no person can be put to trial for the same offence twice when he has already been convicted for the same.Section 300 of Cr.P.C states that a person cannot be put to trial for the same offence more than once when he has already been convicted or acquitted for the same by a competent court.
The scope of Article 20(2) is narrow.The scope of Section 300 is comparatively broad.
It provides protection only against the principle of autrefois convict.It provides protection against the principles of autrefois acquit as well as autrefois convict.
It doesn’t prevent the retrial of a person in cases of different offences arising out of the same facts.It prevents retrial of the person in cases of retrial of a person for different offences but similar facts.

Shortcomings of the doctrine of autrefois acquit and autrefois convict

Though this doctrine is very helpful in preventing a person from suffering punishment for the same offence more than once, it still has some limitations:

  • The accused, as per this doctrine, will only be prevented from retrial for the same offence. This might sometimes lead to injustice, as the accused might be put on trial for an offence that is similar to the one that he has committed. Also, this doctrine doesn’t apply to cases in which an accused has been convicted or acquitted of a smaller offence. Hence, this doctrine has a limited scope.
  • The terms ‘Autrefois acquit‘ and ‘Autrefois convict’ are not defined anywhere and are left to the interpretation of the courts. Hence, this leads to a scope of arbitrary usage of power by courts, and there have been instances where these principles have been interpreted differently by different judges which leads to ambiguity and confusion.
  • Section 300 of Cr.P.C. provides for certain cases in which retrial is not possible, such as when the accused has absconded or the trial has been vitiated because of the accused or because of the prosecution. In such cases, the principle of autrefois acquit can be disadvantageous as there is a possibility that a person who has committed a crime might escape punishment.
  • There is also no provision for compensation to the accused who has faced the trial wrongfully and has been acquitted. This might lead to injustice to the accused as the accused might have spent a lot of money during the trial which was conducted wrongfully and he has no means to recover the same.
  • However, there is an exception to this point. Section 211 of the Indian Penal Code states the punishment that needs to be awarded to a person who has committed the offence of malicious prosecution. This section provides that if any person institutes criminal proceedings against another person with an intention to cause injury to that person or falsely charges any person with having committed an offence shall be punished with imprisonment up to a term of two years, or fine or both. However, as per Section 74 of the Limitation Act 1963, this suit should be filed within one year.

Protection against double jeopardy : the doctrine of res judicata

The doctrine of res judicata, also known as estoppel by the record, is based on the maxim, “Res Judicata Pro Veritate Accipitur”, which means that when a particular matter has already been adjudicated by a competent court, the same cannot be relitigated once again. The underlying principles of both double jeopardy and res judicata are the same, that is, no one should get vexed twice for the same offence.

One of the earliest articulations within the common law of the doctrine of res judicata can be observed in the case of Duchess of Kingston, 1776. In deciding this case, Sir William de Grey, C.J. laid down that, “The judgement of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another Court.” This rule is different from the rule against double jeopardy because res judicata permits the admissibility of only such evidence in a subsequent trial, which is aimed to upset the finding of a fact reached by a competent Court in a previous trial. 

The principle of res judicata can be best understood by looking into the observations of Lord Mac Dermott in the case of Sambasivam v. Public Prosecutor, Federation of Malaya (1950), in which he said, “The effect of the verdict of acquittal pronounced by a competent lawful charge and a lawful trial is not completely started 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.” 

This observation of Lord Mac Dermott is important because he states that whenever an acquittal is ordered by a competent court, it not only acts as a bar to prevent further trial of the person so acquitted, but also that the findings and evidence that are observed by the court are binding and can be used in the subsequent trial of a person, even if the trial is pertaining to a different offence. 

In India, this doctrine was recognised to be universally applicable in the case of Daryao v. State of UP (1961). In this case, the court held that the rule of res judicata applies to a petition filed under Article 32 of the Constitution. If the petitioner files a petition in the High Court under Article 226 of the Constitution and it is dismissed on the merits, it will be construed as res judicata to prevent the petitioner from filing a similar case in the Supreme Court under Article 32 of the Constitution.

Hence, the main conditions that need to be fulfilled for this rule to apply are as follows:

  • The parties in both trials must be the same.
  • This doctrine is only applicable in civil cases and not in criminal cases.
  • The fact in issue, irrespective of whether it is proved or not, must be similar in both trials. 

Judicial pronouncements 

Sangeeta Ben Mahendra Bhai Patel v. State of Gujarat & Anr. (2011)

Facts of the case

The Appellant in the instant case was convicted by the trial court under Section 138 of the Negotiable Instruments Act. However, the Appellant appealed this decision and was subsequently acquitted by the District Judge. The Respondent, aggrieved by the decision, filed an appeal before the High Court of Gujarat. The Appellant filed an application under Section 482 of the Cr.P.C to quash the appeal filed by the Respondent claiming that it constituted double jeopardy.

Issues in the case

Can accused be tried under NI Act as well as under IPC on similar set of allegations or will it amount to double jeopardy.

Judgement of the court

The court in this case held that though there is some kind of overlapping pertaining to the facts of the case, but, the ingredients of both the offences are different. This is because, Thus, the subsequent case is not barred by any statutory provisions.

Thomas Dana v. State of Punjab (1959)

Facts of the case

In this case, the appellant wanted to take out some foreign exchange from India which was confiscated by the customs authorities as per the rules mentioned in the Sea Customs Act. After that, he was put on trial and was also convicted for the offence before a criminal court under the Foreign Exchange Regulation Act and the Sea Customs Act. Hence, he appealed before the Punjab High Court, which was dismissed. Therefore, he filed a writ petition in the Supreme Court on the ground that his prosecution was barred as per Article 20(2). 

Issues in the case

Whether the proceedings before the custom authorities can be considered as a prosecution within the meaning of Article 20(2).

Judgement of the court

The Supreme Court observed that, for any prosecution to constitute double jeopardy and be barred under Article 20 (2), the following requirements must be met.

  1. There must be a previous prosecution.
  1. The Accused must be punished in the previous prosecution.
  1. The punishment must be for the same offence.

Union of India v. Sunil Kumar Sarkar (2001)

Facts of the case

An employee of the Border Road Organisation was court-martialed and found to be guilty of some of the charges framed against him. Hence, he was sentenced to rigorous imprisonment for one year. After that, he was dismissed from service under the relevant Service Rules. 

Issues in the case

Whether the dismissal under the Service Rules can be considered as prosecution to constitute double jeopardy.

Judgement of the court

In this case, the Supreme Court ruled that the punishment didn’t constitute double jeopardy under Article 20(2) as both proceedings were initiated against two different fields, even though the nature of the act was such that the crime arose from the same act. Hence, it didn’t amount to double jeopardy. 

Satwant Singh v. State of Punjab (1960)

Facts of the case

In this case, the accused was charged with murder and was acquitted by the trial court. However, the state government filed a fresh charge against the accused under a different provision of law. 

Issues in the case

Whether the framing of fresh charge after the pronouncement of acquittal of trial court constitutes double jeopardy.

Judgement of the court

The Supreme Court held that the fresh charge was not maintainable and violated the principle of autrefois acquit. The court observed that the accused could not be tried for the same offence under a different provision of law if the essential ingredients of the offence were the same.

Conclusion

In India, a person is deemed innocent until he is proven guilty. This is done to protect the rights of the accused, even if it means that a person who has committed a crime escapes punishment in certain cases. Hence, once a person accused of a crime has faced the consequences for the same by means of punishment, it is unfair to put him through the same peril for the second time. This is the very reason why the principle of double jeopardy has been recognised as a fundamental right under Article 20(2) of our Constitution. Also, the doctrines of autrefois acquit and autrefois convict are recognised under Section 300 of Cr.P.C. to prevent unlawful prosecution of a person for the second time. However, it is very important to make sure that these doctrines and principles are used efficiently and are not used as a shield to protect the people who are guilty of offences and to prevent them from being held liable.

Frequently Asked Questions (FAQs) 

What is the meaning of the term double jeopardy?

The principle of double jeopardy states that a person cannot be tried for the same offence more than once. This means that when a case has been tried and judgement has been given by a court, the same case cannot be filed subsequently in the same court as it amounts to double jeopardy. 

What are the provisions which explain double jeopardy in India?

In India, the principle of double jeopardy can be found in Article 20(2) of the Constitution, Section 26 of the General Clauses Act and Section 300 of the Code of Criminal Procedure, 1974. However, these provisions have their own differences which have already been explained in the article.

What is the meaning of autrefois acquit and autrefois convict?

Both the terms ‘Autrefois acquit’ and ‘Autrefois convict’ are derived from French and mean ‘previously acquitted’ and ‘previously convicted’ respectively. They refer to double jeopardy which is an important principle of criminal jurisprudence that states that a person cannot be tried for an offence for which he was previously convicted or previously acquitted. An accused who was acquitted in a previous trial is called an ‘Autrefois acquit’ and the accused who was convicted in a previous trial is called an ‘Autrefois convict’. 

Is the doctrine of autrefois acquit and autrefois convict similar to the principle of double jeopardy?

There is a difference between the two principles. This is because the principle of double jeopardy is only applicable in cases in which the accused has been acquitted in the previous trial and will not be applicable when he is convicted for the same. However, the doctrine of autrefois acquit and autrefois convict is applicable irrespective of whether the accused is convicted or acquitted in the previous trial.

References 

  • Ratanlal & Dhirajlal- The Code of Criminal Procedure – 22nd Edition

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