Autrefois Conviction and Autefois Acquital

 

AUTREFOIS CONVICTION AND AUTREFOIS ACQUITTAL

 

When the accused appears or is brought before the court for trial of an offence, he can raise the plea that he was earlier tried for the same offence and was convicted or acquitted of the same and that according to the principle of autrefois convict or autrefois acquit he cannot be tried again. The above said principle has been recognized as a fundamental right in the constitution, and has been clearly embodied in section 300 of CRPC. An analysis of the section will bring out the following points.

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 not be liable to be tried again for the same offence while such conviction or acquittal remains in force [sec.300(1)]. It may, however be noted that the term “acquittal” here does not cover the dismissal of a complaint or the discharge of the accused. The word “tried” used in section 300 above has been liberally constructed. When a court has taken cognizance of an offence and has ordered issue of process for the accused to appear, this itself may be considered sufficient to hold that the accused has been ‘tried’.

In order to invoke the principle of autrefois convict of autrefois acquit, it is necessary for an accused person to establish that he had been tried by a “court of competent jurisdiction”. It has been repeatedly held by the supreme court that an adjudication before a collector of customs is not a ‘prosecution’ nor is the collector of customs is not a “prosecution” nor is the collector of customs a “court”. Further, not only the court should have jurisdiction but it should also believe to have it. An order of acquittal passed by a court which believes (though erroneously) that it had no jurisdiction to take cognizance of the offence or to try the case, is a nullity and the subsequent trial for the same offence is not barred by the principle of autrefois acquit.

The words “same offence” indicate that the offence for which the accused has been tried and the offence for which he is again being tried must be identical. The second trial is barred only if the ingredients of the two offences are identical, and not when the ingredients are different though they might have resulted from the commission or omission of the same set of acts.

2.  Even though the offence in the second trial is not the “same offence”, still the second trial will be barred if it is based on the same facts for any other offence for which a different charge from the one made against him [such accused person] might have been made under section 221(1) or for which he might have been convicted under section 221(2) [S.300(1)]

3.  A person acquitted or convicted of any offence cannot afterwards be tried for any distinct offence for which a separate charge might have been made against him in the former trial under section 220(1). However in such a case the second trial will be allowed with the consent of the state government. [s.300(2)]

4.  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[s.300(3)]. For instance, where A is tried and convicted of causing grievous hurt and the person injured afterwards dies, he (ie. A) may be tried again for culpable homicide.

5.  A person acquitted or convicted of any offence constituted by any acts may be subsequently charged with, and tried for, any other offence constituted by the same acts committed by him of the court by which he was first tried was not competent to try the offence with which he is subsequently charged[s.300(4)]. For instance, a magistrate of the second class convicts A of theft of property from the person of B. A magistrate of the first class may subsequently try A on a charge of robbery on the basis of the same facts, because the magistrate of the second class is not competent to try the offence of the robbery.

6.  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 with the consent of any other court to which the first mentioned court is subordinate. [S.300(5)5.]

In a summons case instituted otherwise than upon a complaint, the trial court has got power under section 258 to stop the proceedings at any stage without pronouncing judgment. If the stoppage is made before the recording of the evidence of principal witnesses, it shall have the effect of discharge of the accused person [sec.258]. According to section 300(5) as mentioned above, such accused person cannot be tried again for the same offence without the consent  of the concerned court.