Autrefois convict vs Article 20 (2)

of the Constitution

Harikrishna V R
1281
 Introduction
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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 offence for the reason that he has previously been
acquitted in the same offence 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
offence for the reason that he has been previously been convicted in an offence and the
same can be combined with the plea of not guilty. However these two terms are jointly
known as 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 offence once again if he has been either convicted or
acquitted in the trial relating to same offence
 Objectives of the Principle of Double Jeopardy:
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The principle of double jeopardy is one of the well known principles of criminal
jurisprudence. The main objectives of providing the protection against double
jeopardy are:
◈ To protect the accused from unnecessary harassment which would be caused to
him while undergoing successive criminal proceedings where only one crime has
been committed. Thus the basic principle is that no man’s life or liberty shall be
twice put in jeopardy for the same set of facts.
◈ The Indian judicial system is already suffering from a heavy backlog. In such a
situation it is important to put an end to litigation once it has reached its logical
conclusion, i.e., acquittal or conviction.
 Scope of Article 20(2) of the Constitution:
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Article 20(2) provides that “No person shall be prosecuted and punished for the
same offence more than once.”
The fundamental conditions for the applicability of Art. 20(2) are that:
◈ There must have been a previous prosecution,
◈ The accused must have been punished at such prosecution,
◈ The subsequent proceeding must also be one for the prosecution and
punishment of the accused, and
◈ Proceedings on both the occasions must in relation to the same offence.
 1.The person must be accused of an offence.
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The word offence has to be taken in the sense in which it is used in the General
Clauses Act, 1897 as meaning ‘an act or omission made punishable by any law for
the time being in force’.

2.The person should have been prosecuted before a

Court or a judicial tribunal.
The term prosecution means initiation or starting of any proceedings, criminal in
nature, before a court, or a judicial tribunal. It means that Art. 20(2) would have no
application where the proceedings are held under any revenue authorities.
 Maqbool Hussain v. State of Bombay
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In Maqbool Hussain v. State of Bombay, the appellant, a citizen of India, brought from
a foreign country some gold without making a declaration. The Customs Authorities took
action against him under Sec. 167 of the Sea Customs Act, 1878 and confiscated the
gold. Subsequently, he was charged under Sec. 8 of the Foreign Exchange Regulation
Act, 1947 and prosecution started against him under the said Act. A Constitution Bench of
the Supreme Court held that the Sea Customs Authorities were not a court or a judicial
tribunal and confiscation of gold be them did not constitute a judgment. Thus the plea of
double jeopardy could not be maintained. AIR 1953 SC 325
 3.The person must have been punished after his
prosecution before a Court or judicial tribunal.
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◈ The protection against double jeopardy under this article would be applicable
only if the accused has been not only prosecuted but also punished after such
prosecution. Therefore, if there is no punishment for the offence as a result of
the prosecution this article will have no application.
◈ The words “prosecuted and punished” are not to be taken distributively so
as to mean prosecuted or punished. Both the factors must co-exist
 4. The person must be prosecuted for the second
time before a Court or a judicial tribunal.
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◈ Art. 20(2) would have no application where the person is prosecuted and
punished for the second time, but the subsequent proceedings is merely the
continuance of the previous proceeding, as is the case of an appeal.

5. The offence must be the same in both the

proceedings.
Further, Art. 20(2) can operate as a bar only when the second prosecution and punishment
is for the identical offence for which the person concerned has already been prosecuted
and punished earlier. The same offence means an offence whose ingredients are the
same. If the offences are distinct, there is no question as to the rule of double jeopardy
being applicable. If one and same act of a person constitutes two different offences, then
the punishment for one offence does not bar the prosecution and punishment for the other
offence.
 State of Bombay v. Apte
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◈ In Apte’s case, a person was convicted under Sec. 409 IPC
for criminal breach of trust. His later prosecution on the
same facts under Sec. 105 of the Insurance Act would not be
barred under Art. 20(2) because the ingredients of the two
offences were different.
 Scope of Section 300 Cr.P.C.
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◈ Section 300 may be divided into following parts:
◈ Sub-section (1) makes a provision for autrefois convict and autrefois acquit.
◈ Other sub-sections provide exceptions to the general provision given in sub-section (1).
◈ In those sub-sections provisions are made for subsequent trial of a person, once
tried for the offence on the same facts, or for the same offences in the same transaction.
This section embodies the whole law in so far it expressly says where a second trial is
barred and where a second trial is permissible. Principle laid down in Sec.300 is
exhaustive on the point and it cannot be stretched any further.
 When can the Plea be raised
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◈ This section simply lays down the rule on which a plea of autrefois
acquit or convict is founded; and it would seem that the rule could be invoked by an
accused person at any stage of the proceedings. A plea under this section could be
entertained by the Supreme Court, even if the same plea taken by accused in another
case arising out of the same matter had been rejected by the high court and had not
been appealed against.
◈ The question whether a particular trial is barred by reason of previous prosecution
ending in conviction or acquittal is a question to be determined on the facts and
circumstances of a particular case
 Conditions for Application of Section 300(1)
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◈ That he (the accused person) had previously been tried by a Court for an offence.
◈ That such Court was competent to try that offence.
◈ That he was either convicted or acquitted of that offence, at the former trial.
◈ That such conviction or acquittal still remains in force when a subsequent proceeding
has been brought against him.
◈ That at the subsequent proceeding he is being tried again, (i) for the same offence; or
(ii) on the same facts for any other offence for which a different charge might have
been made under Sec. 221(1)-(2).
 Section 300(2):
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◈ Section 220(1) provides that if in one transaction many offences are committed by the
same person, he may be charged with (separately) and tried at one trial for every such
offence.
◈ Where a person has been convicted or acquitted of any offence and a separate
charge for another offence could have been made but was not made against him in the
former trial, he should not be liable to be prosecuted again for the other offence as it
would lead to harassment. To provide a check against such abuse Sec. 300(2) makes it
obligatory to obtain the consent of the State Government before a new prosecution is
launched against any person for any distinct offence for which a separate charge might
have been made against him at the former trial under Sec. 220(1).
 Section 300(3):
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◈ This sub-section makes provision for a subsequent trial in cases where an act is in itself
an offence but together with the consequences that follow it becomes a graver offence.
‘A’ shoots at ‘B’. He commits an offence of attempt to murder. He is tried
under Sec.307 IPC and acquitted. B dies as consequence of shooting, now the offence
of murder is committed. In this case a subsequent trial for the offence of murder is only
possible when either the consequences had not taken place at the time of the previous
trial or it had happened but it was not known to the Court trying the first case. The
consequences should be the direct consequences
 Section 300(4):
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◈ The words ‘was not competent to try’ means ‘had no jurisdiction to try’.
Jurisdiction included local jurisdiction, so if the previous court had no jurisdiction to
try the subsequent offence, it was a court not competent to try the offence within the
meaning of this clause. If a person has been acquitted or convicted of an offence, but
the same facts disclose another offence which could not be tried by the same
Magistrate who tried the first offence, then the previous acquittal or conviction is no
bar to further proceedings for the latter offence. For example, A is charged by a
Magistrate of the second class with, and convicted by him of, theft of property from the
person of B. A may subsequently be charged with, and tried for, dacoity on the same
facts.
◈ Where the same acts which were committed by the accused constituted several
offences, but the trying magistrate could not charge the accused of the major offences
because of his want of competence to try such offences, a conviction or acquittal for
the minor offence at such trial will not bar a subsequent trial by a competent court of
the major charges.
 Section 300(5):
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◈ Sec. 258, has provided that order of stoppage of proceedings will operate- (a) as an
order of acquittal if it has been made after examination of the principle witnesses, and
(b) as an order of discharge, in other cases.
◈ So far as the order of acquittal is concerned, it is evident that it will bar fresh
prosecution for the same offence under Sec. 300(1). The implied order of discharge
under the latter part of Sec. 258 would not attract Sec. 300(1). Hence, in order to
prevent harassment of the accused by an unnecessary fresh proceeding, sub-section (5)
has been inserted, requiring the consent of the Magistrate who passed the order of
stoppage or of a superior Court, to bring a fresh proceeding.
 Section 300(6):
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◈ Sub-section (6) makes it clear that the provisions of Sec. 26 of the General Clauses
Act have not been affected by the provisions of Sec. 300 Cr.P.C. Sec. 26 of the
General Clauses Act provides that when an act or omission constitutes an offence
under two or more enactments, the offender shall be liable to be prosecuted and
punished under either any of those enactments but he shall not be liable to be punished
twice for the same offence. Under this section it is open and permissible for the
prosecution to choose to prosecute accused under provisions of one of the Acts.
◈ This section also provides that nothing in this section shall effect the proviso
of Sec.188 of the Code. The proviso of Sec. 188 makes it compulsory to take the
sanction of central government prior to the prosecution for offences committed out of
India.
 Comparison between Section 300 Cr.P.C. and
Article 20(2) of the Constitution
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◈ Section 300 is more comprehensive in its scope that Art. 20(2). Art. 20(2) bars the re-
trial of a person for the same offence when he has been convicted and sentenced for the
same offence whereas Section 300(1) specially incorporates the principle which gives
effect to the pleas of autrefois acquit as well as autrefois convict.
◈ Article 20(2) is only applicable to same offences but the protection under Sec. 300 is
also applicable to cognate offences for which charge could have been framed in the
previous trial under Sec. 220(1).
 Contd.
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◈ In the landmark judgment of State of Tamil Nadu v. Nalini also it has been held that
though Art. 20(2) of the Constitution of India embodies a protection against second
trial after a conviction of the same offence, the ambit of the sub-article is narrower than
the protection afforded by Sec. 300 if the Criminal Procedure Code. 300 has further
widened the protective wings by debarring a second trial against the same accused on
the same facts even for a different offence if a different charge against him for such
offence could have been made under Sec. 221(1) or he could have been convicted for
such other offence under Sec. 221(2) of the Code.
◈ In the of Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao the Supreme Court
held that there is difference between the language used in Art. 20(2) and Sec. 300. Sec.
300 being wider in ambit states that no one can be tried and convicted for the same
offence or even for a different offence but on the same facts. Hence, in this case
prosecution under Sec. 420 IPC was barred by Sec. 300(1) as the appellant had already
been convicted under Sec. 138 of the Negotiable Instruments Act, 1881.
 CONCLUSION
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◈ 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 valve against the
unlawful prosecution of a person for the same offence for the second time. The pleas of
autrefois acquit and autrefois convict are one of the preliminary pleas to bar any trial.
Thanks!

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