Equivalent Citation – 2022 (6) KLT OnLine 1043 (SC)
Decided on 12.02.2022
Bench: Honourable Justices M.R.Shah and C.T. Ravikumar
Impugned Order: –
The appeal has been preferred against the order of High court of
Calcutta confirming the dismissal of the petition filed under Section 300(1)
of Cr.P.C by the trial court.
Facts: –
The accused / appellant was previously tried and acquitted vide
judgment dated 21.05.2010 for the offence under Section 364 inter alia
arising from a FIR no 61/2002. One year after the acquittal a second FIR
was registered alleging the death of the same person that they had
allegedly kidnapped and were acquitted of. Then, the appellant
approached the High Court for quashing the subsequent FIR and the
Court dismissed the petition giving liberty to avail the remedy at the stage
of framing of charge. Accordingly the appellant filed a petition under
Section 227 r/w 300(1) of Cr.P.C. at the trial court in which the petition
under Section 300(1) was dismissed by the trial court and the same was
confirmed by the High Court.
Issue:
- Whether a petition under Section 300(1) of the Cr.P.C is
maintainable prior to the framing of charges? - Whether subsequent registration of the FIR alleging different offence
arising out of the same facts is barred under Section 300(1) of the
Cr.P.C?
Dictum: –
The stage of discharge under Section 227 Cr.P.C is a stage prior to
framing of the Charge under Section 228 Cr.P.C. and it is at that stage
alone that the court can consider the application under Section 300
Cr.P.C. Once the Court rejects the discharge application, it would proceed
to framing of charge under Section 228 Cr.P.C.
Explanations: –
To avail remedy at the stage of framing of charge means a stage
which immediately prior to the framing of charge under Section 228. Once
the court proceed to framing of charge under Section 228, then the only
question before it would be the nature of the offence and not that the
appellant has not committed an offence or that he cannot be tried on
account of the bar under Section 300 Cr.P.C. Hence, the application under
Section 300 of Cr.P.C can only be filed at the stage of discharge under
Section 227 of Cr.P.C.
Decision: –
Without entering in to the merits of the case, the matter is remitted
to the trial court to consider the application under Section 300(1) Cr.P.C
along with the application for discharge under Section 227.
Remarks: –
Here though the counsel for the appellant argued for both issues
mentioned above, the apex court discussed only about the 1st issue and
the 2nd issue is left to the trial court.
Section 300 of Cr.P.C v. Article 20(2) of the Constitution
The ancient maxim “nemo debet bis vexari,” which states that a man
should not be put in danger twice for the same offence, serves as the
foundation for the right secured under clause 2 of Article 20 of the Indian
Constitution and Section 300 of the Criminal Procedure Code, 1973.
According to Article 20(2) of the Indian Constitution, “No Person shall be
prosecuted and punished for the same offence more than once.” It should
be noted that the right to double jeopardy was not added to the
Constitution as a new feature because it was already a part of Indian law
under the Criminal Procedure Code. Specifically, Section 26 of the General
Clauses Act and Section 403 (1) of the Cr PC 1898 both provide protection
from double jeopardy. This is still referenced in Section 300 of the Criminal
Procedure Code of 1973. In actuality, Section 300 explains the concept of
double jeopardy much more thoroughly than does Article 20 (2) of the
Constitution. Additionally, it is widely accepted that Article 20(2) of the
Constitution only serves as a parliamentary gloss over an established
doctrine that is already included in the Cr PC. “Person once convicted or
acquitted not to be tried for the same offence,” states Section 300.
The main objectives of providing protection against double jeopardy
are of twofold, (1) To protect the accused from unnecessary harassment
(2) to put an end to litigation once it has reached its logical conclusion.
The essentials of Art.20 (2) are: –
The person must be accused of an offense
The person should have been prosecuted before a court or a judicial
tribunal-
The person must have been punished after his prosecution before a
court or judicial tribunal.
The person must be prosecuted for the second time before a court or
a judicial tribunal.
The offense must be the same in both the proceedingsThe conditions for the application of Sec. 300(1) are:
That he (the accused person) had previously been tried by a Court
for an offense.
That such Court was competent to try that offense.
That he was either convicted or acquitted of that offense, 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 offense; or (ii) on the same facts for any other offense for which
a different charge might have been made under Sec. 221(1)-(2).
Comparison between section 300 Cr.P.C and article 20 (2) of the
constitution: –
Art. 20(2) of the Constitution clearly uses the word ‘and’ in a
conjunctive sense and it is only where the accused has been both
prosecuted and punished for the same offense that a second trial is barred.
Even though the right against double jeopardy under Art. 20 (2) of the
Constitution is a fundamental right and under Section 300 Cr.P.C. is a
statutory right, the ambit of Article 20 (2) is smaller than that of Section
300.
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 offense when he has been
convicted and sentenced for the same offense whereas Section 300(1)
especially incorporates the principle which gives effect to the pleas of
autrefois acquit as well as autrefois convict.
Article 20(2) is only applicable to the same offenses but the
protection under Sec. 300 is also applicable to cognate offenses for which
charge could have been framed in the previous trial under Sec. 220(1).
Case Laws: –
The Supreme Court has explained the legal position in the case of
State of Bombay v. Apte (AIR 1961 SC 578), “To operate as a bar the
second prosecution and the consequential punishment thereunder must
be for the ‘same offense’. The crucial requirement therefore for attracting
the article is that the offenses are the same, i.e., they are identical. If
however, the two offenses are distinct, then notwithstanding that the
allegations of facts in the two complaints might be substantially similar,
the benefit of the ban cannot be invoked.” 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 offenses
were different.
In the landmark judgment of State of Tamil Nadu v. Nalini (1999)
5 SCC 253 also it has been held that though Art. 20(2) of the Constitution
of India embodies protection against the second trial after a conviction of
the same offense, 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 offense if a different
charge against him for such offense could have been made under Sec.
221(1) or he could have been convicted for such other offense under Sec.
221(2) of the Code.
In the case of Kolla Veera Raghav Rao v. Gorantla Venkateswara
Rao AIR 2011 SC 641, the Supreme Court held that there is a 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 offense
or even for a different offense 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.
Kalawati v. State of Himachal Pradesh AIR 1953 SC 131, A
person accused of committing murder was tried and acquitted. An appeal
by the state was preferred against the acquittal. It was held by the court
that the accused could not plead Article 20(2) against the appeal. Hence
the principles of double jeopardy do not apply to appeal. Article 20(2) does
not apply when there was no punishment for the offense at the earlier
prosecution.
State of Bihar v. Murad Ali Khan 1988 (2) KLT SC SN 72 (C.No.
108) – The Supreme Court held that in order for the prohibition to apply
under Article 20(2), the same act must constitute an offense under more
than one Act. If there are two distinct separate offenses with ingredients
under two different enactments, a double punishment is not barred.
Suba Singh & Anr. v. Davinder Kaur & Anr (AIR 2011 SC 3163).-
The accused was convicted and sentenced with imprisonment and fine
under Sec. 304 IPC. The widow and minor daughter of the deceased
claimed compensation as damages from defendants for causing the death
of the deceased by their wrongful act. The accused claimed protection
against double jeopardy under Art. 20(2) but the Supreme Court held that
“it is elementary that an action for civil damages is not prosecution and a
decree of damages is not punishment. The rule of double jeopardy,
therefore, has no application to this case”.
Maqbool Hussain v. the State of Bombay AIR 1953 SC 325- 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.
