Scope of protection against double jeopardy provided under article 20(2) of the constitution of india

 

SCOPE OF PROTECTION AGAINST DOUBLE JEOPARDY PROVIDED UNDER ARTICLE 20(2) OF THE CONSTITUTION OF INDIA

 

A person cannot be tried again 9ie. second time) for the same offence. Section 300 bars second trial.

Section 300 CrPC reads as follows:-

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 91) 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, not withstanding 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 [10 of 1897]

 

Explanation:- The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purpose of this section.

ILLUSTRATIONS:

a.  A is tried upon a charge of theft as a servant and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or upon the same facts with theft simply, or with criminal breach of trust.

b.  A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.

c.   A is charged before the court of session and convicted of the culpable homicide of B. A may not be afterwards be tried on the same facts for the murder of B.

d.  A is charged by a magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to B on the same facts, unless the case comes within sub – section [3] of this section.

e.  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, robbery on the same facts

f.   A,B and C are charged by a magistrate of the first class with, and convicted by him of robbing D,A,B and C may afterwards be charged with and tried for, dacoity on the same facts.

 

The section is based upon memo debt his veseri. No one can be tried second time for the offence tried earlier.

 

Article 20 clause [2] reads thus:

‘No person shall be prosecuted for the same offence more than once’

Article 20 clause 2 bars second prosecution ie. double punishment.

 

Identity of offence is a requisite for the application under Article 20 clause 2 of Indian constitution.

 

Rule of estoppels is a fact of the doctrine of autarefois acquit and bars reception of evidence on issue.

 

Protection [immunity] available to accused person as follows:

·         Evidence in the course of trial

·         Pre – trial stage [As and when accusation has been made against him in the normal course which results in this prosecution]

·         Formal accusation stage [before commencement of actual trial] As and when the FIR is recorded impleading accused and the name is found in the FIR

·         Immunity is available as and when the process has been issued to appear before the court.

·         Immunity is available for production of documentary evidence.

      Conditions for application of Article 20 clause [2] of Indian constitution:

1.  Previous proceedings is a must with reference to offence committed before the competent judiciary or tribunal.

2.  Offence in the earlier proceedings which must be subject matter of the subsequent proceedings.

3.  Prosecution ie. means an initiation or starting of proceedings of a criminal nature before the competent court.

4.  Article 20(2) bars of estoppels.

5.  In this case, whether he has committed an offence ingredients are identical.