This article is written by Gaurav Thote, an advocate. In this article, the author has discussed the doctrine of double jeopardy and the prosecution of public servants.
Table of Contents
Introduction
On June 18, 2020 (Criminal Appeal No. 458 of 2020 (SLP No. 1882 of 2018)) the Apex Court quashed a Complaint filed against a Police Officer for want of sanction, observing that the alleged offence was pertaining to an act under colour of duty. The Supreme Court, while setting aside the order of the High Court, observed-
“In our considered opinion, the High Court clearly erred in law in refusing to exercise its jurisdiction under Section 482 of the Criminal Procedure Code to set aside the order of the Magistrate impugned taking cognizance of the complaint, after having held that it was a recognized principle of law that sanction was a legal requirement which empowers the Court to take Cognizance. The Court ought to have exercised its power to quash the complaint instead of remitting the appellant to an application under Section 245 of the Criminal Procedure Code to seek discharge.”
A short question arises as to whether a subsequent prosecution instituted after obtaining sanction to prosecute the Public Servant would violate the doctrine of Double Jeopardy.
The Doctrine of Double Jeopardy is based on the maxim ‘Nemo Debet Bis Vexari’ which essentially translates as ‘no person should be twice vexed for the same offence’. To quote the Apex Court in State v. Nalini, “The well-known maxim “nemo debet bis vexari pro eadem causa” (no person should be twice vexed for the same offence) embodies the well-established common law rule that no one should be put to peril twice for the same offence.”
Article 20 (2) of the Constitution of India incorporates within its scope the plea of “autrefois convict” which is based on the Doctrine of Double Jeopardy stating-
“20. Protection in respect of conviction for offences–
(2) No person shall be prosecuted and punished for the same offence more than once.”
Double Jeopardy under the Code of Criminal Procedure-
Section 300 of CrPC is based on Article 20(2) of the Constitution of India and additionally incorporates the application of “autrefois acquit” which essentially denotes a previous acquittal. Section 300 of the CrPC states-
“300. 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.
(2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government for any distinct offence for which a separate charge might have been made against him at the 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 section258 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 (10-of-1897) or of section 188 of this Code.”
In addition to Section 300 of CrPC, it would be imperative to refer to Section 386 of CrPC, which contemplates powers of the Appellate Court to order a re-trial in certain cases. Nevertheless, it is clear that a person tried for any offence cannot be prosecuted, convicted, and/or punished more than once for the same offence except as contemplated in Sections 300 and 386(a), (b), and (c) [in case of Appeals] of CrPC.
Prosecution of Public Servants
The law is equally applicable to all. Just like any other individual, a public servant committing an offence must face prosecution. The ambit of “Public Servants” is enumerated under Section 21 of IPC essentially asseverating a Public Servant to include any person employed directly or indirectly by the Government. On account of their role in State affairs and the duties/responsibilities that ensue, public servants stand on a different footing and require protection as against any attack levelled on them in discharge of their official duties. In The Prevention of Corruption Act, 1988 protection against prosecution is provided to Public Servants under Section 19 of the Act. In general statutes, protection against prosecution is provided to Public Servants by virtue of Section 197 of the CrPC, a bare perusal of which reads as under-
“197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) In the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government:
Provided that where the alleged offence was committed by a person referred to in clause-(b) during the period while a Proclamation issued under clause-(1) of article-356 of the Constitution was in force in a State, clause-(b) will apply as if for the expression” State Government” occurring therein, the expression” Central Government” were substituted.
(2) ….
(3) ….
(3A) ….
(3B) ….
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held.”
Question/Issue of Sanction
The Apex Court in Devinder Singh v. State of Punjab, while holding previous sanction inessential in a fake encounter case, held-
“VI. Ordinarily, question of sanction should be dealt with at the stage of taking cognizance, but if the cognizance is taken erroneously and the same comes to the notice of Court at a later stage, finding to that effect is permissible and such a plea can be taken first time before appellate Court. It may arise at inception itself. There is no requirement that accused must wait till charges are framed.
VII. Question of sanction can be raised at the time of framing of charge and it can be decided prima facie on the basis of accusation. It is open to decide it afresh in light of evidence adduced after conclusion of trial or at other appropriate stage.
VIII. Question of sanction may arise at any stage of proceedings. On a police or judicial inquiry or in course of evidence during trial. Whether sanction is necessary or not may have to be determined from stage to stage and material brought on record depending upon facts of each case. Question of sanction can be considered at any stage of the proceedings. Necessity for sanction may reveal itself in the course of the progress of the case and it would be open to accused to place material during the course of trial for showing what his duty was. Accused has the right to lead evidence in support of his case on merits.”
The question of sanction, thus, could arise at a post cognizance/appellate stage which may include the stage of:
(i) framing of charges, (ii) evidence, (iii) final arguments and/or (iv) conclusion of trial/appeal.
In this backdrop, the following questions arise:
- Would the issue of sanction be a curable defect?
- If the issue of sanction arises at a post-cognizance stage, would the trial be vitiated for want of sanction?
- If proceedings are terminated for want of sanction at a post cognizance/appellate stage, can cognizance be taken afresh after obtaining previous sanction without violating the doctrine of double-jeopardy?
Analysis
In State v. B.L. Verma, the Apex Court upheld the decision of the High Court to quash the proceedings for want of sanction as previous sanction was observed to be necessary to prosecute the accused. However, before parting with the order, the Court observed that it would be perfectly valid and open for the Petitioner to activate prosecution if such sanction was obtained. The Court went on to observe-
“The High court has rightly found that that would not oust the necessity of sanction under Section 197 Criminal Procedure Code to take cognizance of the offence. The expression “no court shall take cognizance of such offence except with the previous sanction” occurring in Section 197 Criminal Procedure Code unmistakably shows that the bar on-the exercise of powers by the court to take cognizance is mandatory and the previous sanction from the competent authority for prosecution of the public servant, who is accused of having committed an offence either in the execution of his duties or in the purported execution of his duties is essential to take cognizance. Thus in the absence of sanction under Section 197 Criminal Procedure Code the court of the Chief Metropolitan Magistrate could not have taken cognizance of the offence against the respondent and the High court, therefore, committed no error in directing the dropping of proceedings against him, in the absence of such a sanction.
HOWEVER, before parting with this order, we would like to clarify, lest there be any ambiguity, that the direction of the High court to drop the proceedings against the respondent was on account of want of sanction under Section 197 Criminal Procedure Code, and should the competent authority hereafter grant sanction under Section 197 Criminal Procedure Code, it will be perfectly valid and open to the petitioner herein to activate the prosecution against the respondent and the order of the High court dated 4/12/1996 or this order shall not come in the way of the court to take cognizance nor shall the orders come in the way of the competent authority to grant sanction under Section 197 Criminal Procedure Code, after considering the facts and circumstances of the case if the CBI applies for obtaining sanction. Nothing said hereinabove shall, however, be construed as any expression of opinion on the merits of the case, and the competent authority of the court as the case may be, shall decide the matter on its own merits.”
In State of Mizoram v. C.Sangnghina, the Apex Court while observing the principles of “double jeopardy” inapplicable to subsequent proceedings instituted with a valid sanction, set aside the decision of the High Court wherein the High Court affirmed the order of the Trial Court declining to take cognizance of a subsequent charge-sheet holding it to be barred under the principles of “double jeopardy”. The Court held-
“In the case in hand, the respondent/accused has not been tried nor was there a full-fledged trial. On the other hand, the order of discharge dated 12.09.2013 passed by the Special Court was only due to invalidity attached to the prosecution. When the respondent/accused was so discharged due to lack of proper sanction, the principles of “double jeopardy” will not apply. There was no bar for filing fresh/supplementary charge sheet after obtaining a valid sanction for prosecution. The Special Court once it found that there was no valid sanction, it should have directed the prosecution to do the needful.
In Mohammad Safi v. State of West Bengal a full-bench of the Apex Court held that although the prosecution and defence witnesses were examined alongwith the further accused being examined in the previous trial, the proceedings could not have been underpinned to a trial for want of competence of the Trial Court.
While holding the previous order of acquittal to be null and void, the Apex Court held that the subsequent trial and conviction was valid and not barred under the principles of “double jeopardy”.
The relevant para reads as under-
“From what we have said above, it will be clear that the fact that all the witnesses for the prosecution as well as for the defence had been examined before Mr. Ganguly and the further fact that the appellant was also examined under s. 342 cannot in law be deemed to be a trial at all. It would be only repetition to say that for proceedings to amount to a trial they must be held before a court which is in fact competent to hold them and which is not of opinion that it has no jurisdiction to hold them. A fortiori it would also follow that the ultimate order made by it by whatever name it is characterised cannot in law operate as an acquittal.”
Although the aspect of sanction is not involved in the case of Mohammad Safi (supra), the sole purpose of referencing it is to perceive that proceedings before a Court incompetent to take cognizance of a matter would render such proceedings void.
Conclusion
The cumulative effect of findings above-mentioned help draw an inference that a Court taking cognizance without sanction, where such sanction is essential, would not be competent to try/proceed with the matter and the question of “jeopardy”, therefore, would not arise.
To answer (a), (b) and (c), the issue of sanction would be a curable defect and though the trial/proceedings would be vitiated for want of sanction, cognizance taken afresh after obtaining valid sanction is permissible and subsequent proceedings emanating from such cognizance would not violate the doctrine of Double-Jeopardy.
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