Persons Once Convicted or Acquitted of An Offence Are Not to Be Tried for The Same Offence Again – Explain

Section 300 of The Code of Criminal Procedure, 1973, provides that a person once convicted or acquitted cannot be tried for the same offence twice. Similarly, the Constitution of India under Section 20 (2) speaks about Double Jeopardy.

This principle is based on certain maxims, such as:

1. Autrefois Acquit – It means a person who has been charged and subsequently acquitted of the offence cannot be put on trial on the same offence again.
2. Autrefois Convict – It means when a person has been prosecuted and punished for an offence, cannot be put on trial on the same offence again.
3. Nemo debet bis vexari – It means no person should be tried for the same offence more than once.

Section 300 of the Code of Criminal Procedure provides:

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, maybe 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 (10 of 1897) or of section 188 of this Code.

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

In simple words, Section 300 provides the following propositions:

1. A person who has been convicted or acquitted by a Court of competent jurisdiction cannot be put on trial for the same offence again.
2. A person who has been charged for an offence under Section 221 (1) or has been convicted under Section 221 (2) cannot be tried on the same facts while such acquittal or conviction is in force.
3. There must be a trial before competent jurisdiction. If there is no trial, subsequent trial for the same offence is not barred.
4. A separate charge, amounting to a distinct offence, which could have been made against such person, who has been acquitted or convicted of any offence, but was not made in the formal trial can be subsequently made with the permission of the State Government.
5. Section 300 (3) is applicable in cases where there is a conviction.
6. The accused may be put on a trial again for the acts, which are not known to the Court at the time of the former trial.
7. A person who has been acquitted or convicted by a Court which is incompetent to try such case can be put on a re-trial for such offence. In such case the prior acquittal or conviction shall not bar the subsequent trial as the Court which entertained the first trial had no jurisdiction in such case.
8. Under Section 258 of the Code of Criminal Procedure, 1973, the Court may stop the proceeding without pronouncing the judgment and the person on trial may be discharged. Such person cannot be tried for the same offence without the consent of the Court by which he was discharged.
9. Section 300 of the Code of Criminal Procedure shall not affect any provisions of Section 26 of the General Clauses Act, 1897.

Illustrations:

1. X, the servant of a family, was charged for theft by Y, the head of the family. X was not found guilty and he was acquitted. In this case, X cannot be charged again for the offence of theft while the acquittal remains in force.
2. X was convicted for causing grievous injury to Y. Subsequently, Y succumb to death, X may now be tried for culpable homicide. In this case previous conviction shall not bar the subsequent trial.

Case History:

In Baji Nath Prasad v. State of Bhopal, AIR 1957, it was held that in case the first trial was before the Court which was incompetent to entertain such case then the entire trial is null and void. Such trial shall not bar a subsequent trial before a competent Court.

In State of M.P. v Veereshwar Rao, Air 1957, it was held that in case there are two different charges in the same trial against a person, acquittal in one of them does not discharge him from the other charge. He may be prosecuted for the other offence.

In M\S P.V. Mohammad Barmay Sons v. Director of Enforcement, 1993, in this case the appellant was charged for offences under the Sea Customs Act for evasion of tax and under the Foreign Exchange Regulation Act. On getting acquitted for the offence under the Sea Customs Act, it was pleaded on his behalf that for the same offence, the proceeding cannot be initiated under two Acts. It was held that the two Acts deal with different matters and the fact that the appellant was acquitted under the Sea Customs Act does not make him immune from the allegations which were brought by the enforcement authorities under the Foreign Exchange Regulation Act.

In Mohinder Singh v. State of Punjab, AIR 1999, the Supreme Court held that trial for the offence of attempted dacoity under Sections 399 and 402 of the Indian Penal Code and Section 3 of TADA Act, 1985, and offence of possession of firearms without a license under Section 25 of the Arms Act 1959 and Section 5 of the TADA Act, 1985 were two distinct offences and therefore, the former offence shall not in any case bar the trial for subsequent offence.

Double Jeopardy

Article 20 (2) of The Constitution of India incorporates the doctrine of Double Jeopardy. It is one of the fundamental rights provided to a person. According to Article 20 (2) “No person shall be prosecuted and punished for the same offence more than once”. This doctrine is based on the maxim Nemo debet bis vexari which means, a person must not be prosecuted twice for the same offence. The object of this provision is to prevent any harassment caused to a person for successive criminal proceedings for the same crime. It protects a person from double punishment for the same offence.

Following are the essentials of Article 20(2):

1. The person must be accused of an offence, i.e., he must have committed an act or omission which is punishable by the law.
2. The offence must be tried by a competent court or judicial tribunal.
3. Article 20 (2) is applicable to a person only when he has been punished after the prosecution. For the operation of this Article both the prosecution and punishment must co-exist.
4. The person who has been prosecuted for the second time will get protection against double jeopardy. But if the subsequent proceeding is the continuation of the first trial, Article 20 (2) shall not be applicable.
5. There must be the same offence in both the proceeding.

Case History of Double Jeopardy:

In Kalawati v. State of H.P., AIR 1953, it was held that where an appeal was preferred against an acquittal it is a continuation of the prosecution and not a fresh proceeding. A prosecution commences at the Court of the first instance and it ends at the Court of appeal.

In Leo Roy Frey v. Superintendent, District Jail, AIR 1958, in this case the accused was initially prosecuted and punished under the Sea Customs Act, 1878. Subsequently, he was prosecuted under Section 120 of the Indian Penal Code, 1860 for conspiracy to commit such act. Protection against double jeopardy was pleaded on his behalf. However, the Court held that Article 20(2) shall not be applicable in this case as committing an offence and conspiracy to commit such offence is two separate offence, therefore the second proceeding is not barred by Article 20 (2).

References:

• N. Misra, The Code of Criminal Procedure, 1973, 16th Edition, 2009, Central Law Publications.
• Narender Kumar, Constitutional Law of India, 7th Edition, 2008, Allahabad Law Agency.

This Article is Authored by Moumita Paul, B.A. LLB Student at Hazra Law College, Calcutta University.