NATIONAL LAW INSTITUTE UNIVERSITY,

BHOPAL

CRI MINAL
LAW:-
IV
RULE

AGAINST DOUBLE JEOPARDY UNDER SECTION 300

OF THE CODE

FOR THE PARTIAL FULFILMENT OF CRIMINAL LAW-IV OF

BA.LLB (Honours) COURSE, WORK PRESCRIBED BY NLIU IS
SUBMITTED TO RESPECTED PROFESSOR FOR THE YEAR
2019-2020.

SUBMITTED TO :- PROFESSOR DIVYA SALIM

MA’AM
SUBMITTED BY:-MAYANK PATEL
(2016BALLB119)
 ACKNOWLEDGEMENT

I extend my gratitude to our faculty of CRIMINAL LAW-IV ( CRPC), Prof. Divya Salim for
giving me an opportunity to make a project on this topic and for being a guiding force
throughout this submission and being instrumental in successful completion of this project.

The making of this project involved accessing large number of websites, reading many research
articles and books, this would have been impossible without the help of my colleagues and
friends who helped me in getting familiar with many websites and authors which proved to be
immensely helpful.

I have made my sincere effort to make this project, yet some mistakes might have crept in, I
apologize for the mistakes that may have taken place inadvertently.

Thank you!

2
 PREFACE

I feel great pleasure in presenting the project under study. I hope that the readers will find the
project interesting and that the project in its present from shall be well received by all. The
project contains the rule against double jeopardy under section (300), ingredients of section
300, rule against the double jeopardy enshrined under article 20(2) of the Constitution of India,
difference between the constitution and section 300 CrPC double jeopardy principle, and a brief
comparison of issue-estoppel and double jeopardy principle under section 300 of CrPC. Atlast,
the recent judgments on the principle of double jeopardy under Section 300 CrPC are
discussed.

Every effort is made to keep the project error free. We would gratefully acknowledge the
suggestions to improve the project to make it more useful.

Thank You!

3
Contents
ACKNOWLEDGEMENT...............................................................................................................2

PREFACE..........................................................................................................................................3

RESEARCH OBJECTIVES.........................................................................................................5

RESEARCH METHODOLOGY...................................................................................................5

HYPOTHESIS..................................................................................................................................5

INTRODUCTION............................................................................................................................6

DOUBLE JEOPARDY UNDER SECTION 300....................................................................7

MANDATORY INGREDIENTS..................................................................................................8
1) TRIED:-.....................................................................................................................................8
2) ‘COURT OF COMPETENT JURISDICTION’ :-.....................................................................9
3) ‘FOR AN OFFENCE’ :-............................................................................................................9
4) ‘CONVICTED OR ACQUITTED’ :-......................................................................................10
5) ‘WHILE SUCH CONVICTION OR ACQUITTAL REMAINS I N FORCE’ :-.....................10
6) ‘SHALL...NOT BE LIABLE TO BE TRIED AGAIN FOR THE SAME OFFENCE’ :-........11
7) ‘NOR ON THE SAME FACTS FOR ANY OTHER OFFENCE’ :-.......................................11
SECTION 300 AND DOUBLE JEOPARDY UNDER ARTICLE 20(2).......................11

EXCEPTIONS................................................................................................................................12
1. TRIAL ON SEPARATE CHARGE:-......................................................................................13
2. SUBSEQUENT TRIAL FOR FURTHER CONSEQUENCES:-.............................................13
3. TRIAL BEFORE INCOMPETENT COURT:-........................................................................13
4. POSITION OF DISCHARGED ACCUSED:-.........................................................................14
5. SUB-SECTION (6):-...............................................................................................................14
6. DISMISSAL OF COMPLAINT, DISCHARGE OF ACCUSED:-..........................................14
7. TRIAL WITHOUT SANCTION:-...........................................................................................14
8. DEPARTMENTAL ACTION AFTER ACQUITTAL FROM COURT:-................................15
PRINCIPLE OF ISSUE-ESTOPPEL AND DOUBLE JEOPARDY................................15

RECENT JUDGEMENTS...........................................................................................................16

CONCLUSION...............................................................................................................................22

BIBLIOGRAPHY...........................................................................................................................23

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 RESEARCH OBJECTIVES

1) To study and understand the meaning of double jeopardy under section 300 of the
code.
2) To understand double jeopardy under Article 20(2) of Constitution of India and how
it is distinct from the double jeopardy under code.
3) To thoroughly understand double jeopardy so not to confuse with issue estoppels.
4) To study and analyse the judicial minds by studying recent judgements on double
jeopardy or to understand how court decide when double jeopardy applies and when
not?
5) To better understand the exceptions of the double jeopardy.

RESEARCH METHODOLOGY

The data has been collected from secondary sources using non- doctrinal method of
research and further data analysis is done to draw conclusions.

HYPOTHESIS

The Person cannot be humiliated and tried for the same offence again and again of
which he was acquitted or convicted once except in certain circumstances.

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 INTRODUCTION

Rule against Double Jeopardy is based on the common law principle contained in the doctrine
of “autrefois acquit” and “autrefois convict” which says that if a person is gone through trial
and got conviction or acquittal for an offence than the trial cannot be initiated again against
that person on the same offence or different offence on the same facts. The rule against
double jeopardy applies in criminal cases only and not in the civil or administrative cases.
The concept of double jeopardy enacted to protect the accused from multiple trials for the
same offences. There are several reasons given by the scholars why there is need of rule
against Double Jeopardy, some basic reasons are:-

 To preserve the finality of the proceedings and it could be compromised if multiple

trials are allowed for the same offence which could result in the violation of the
‘natural justice’ on which the whole criminal justice administration stands.
 It is to impose restrictions and limitation on the prosecutions power and,
 And the most important it is to protect the accused from the emotional and financial
trauma which he might suffer of repeated prosecutions.

In this project, I explained the Rule against Double Jeopardy under Section 300 of code its
exceptions, the ingredients of section 300, Double Jeopardy Principle under Article 20(2) of
the Constitution of India and Section 300 of CrPC, a brief comparison of double jeopardy and
issue estoppels.

At last I also mentioned some recent judgements relevant to Section 300 principle to better
understand the practical applicability of this principle.

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 DOUBLE JEOPARDY UNDER SECTION 300

Section 300 (1) of CrPC states as “ A person who has once tried by a court of competent
jurisdiction for an offence and convicted or acquitted of such offence shall, while such
conviction or acquittal remain 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.”

This section lays down that a person once convicted or acquitted cannot be tried for the same
offence. It is based on the maxim nemo debetbis vexari, which means that a person cannot
be tried a second time for an offence which is involved in the offence with which he was
previously charged. In order to bar the trial of any person already trial, it must be shown:

1) That he has been tried by a competent court for the same offence or one for which he
might have been charged or convicted at that trial, on the same facts,
2) That he has been convicted or acquitted at the trial, and
3) Such conviction or acquittal is in force.

The whole basis of this section is that the first trial should have been before a Court
competent to hear and determine the case and to record a verdict of conviction or acquittal. If
the court was not so competent, it is irrelevant that it would have been competent to try other
cases of the same class or indeed the case against the particular accused in different
circumstances, e.g., if a sanction has been obtained.1 Where the conviction of a person and
the sentence passed on him are set aside on the ground of want of proper sanction, it cannot
be said that there was a proper trial at all and the result of the decision cannot operate under
this section as a bar to a fresh trial after receipt of a fresh sanction.2

The provision of the code upon the question of previous acquittal are different from the
principles underlying the English doctrine of autrefois acquit in this that the code makes a
clear distinction between “discharge” and “acquittal.” The rule of English law, requiring the

1
Yusofali Noorbhoy vs The king, (1950) 52 Bom LR 1; 76 IA 158: AIR 1949 PC 264.
2
M. Gopalakrishna Naidu vs The State, (1952) ILR Nag 52;

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accused to have been tried as well as acquitted in order to bar further proceedings and
embodied in this section, is inapplicable to statutory acquittal under sections 321, 256 and
320.

This sub- section operates in cases covered by section 221 (1) and (2) and not in cases
covered by section 220(1). Hence, where the accused are charged with and convicted of the
offence of conspiracy (section 120B, Indian Penal Code) they can again be charged with and
convicted of the separate offences of cheating (420, IPC) committed by them in pursuance of
that conspiracy, under this sub-section.

Where there was a criminal trial for offences under TADA along with other offences under
the Penal Code, a subsequent trial for offences under TADA based on the same facts was
held to be barred. The SC set aside the conviction under the second trial.3

MANDATORY INGREDIENTS

1) TRIED:-
There must be a trial of the accused, i.e., hearing and determination on the merits. In a
summons-case, the accused is said to be “tried” when he appears and answers to the
intimation under section 251, which takes the place of a formal charge. In a case
triable exclusively by a Court of Session, the trial commences after a charge is framed
under section 228. There is no trial before the charge is framed but an inquiry only.
Once a summons has been issued to the accused and section 256 has come into
operation, the accused must be deemed to have been tried within the meaning of this
section, though the summons may not have been served and the accused may not have
appeared.4 The words “who has been tried” mean against whom proceedings have
been commenced in Court i.e., against whom the Court has taken Cognizance of the
offence and issued process.
Where on a police report, the magistrate has passed order that the accused be
discharged, and on reinvestigation, the police can file a fresh charge-sheet against the
accused on the same facts, Section 300 did not bar such proceedings.5
3
State of T.N. vs Nalini, AIR 1999 SC 2640 at p. 2684: (1999) 5 SCC 253.
4
Bhoopatibhushan Mukherji vs Amiyabhooshan Mukherji, (1935) 62 Cal 1119.
5
Namasivayam vs State of Madras, 1982 CrLJ 707.

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 If there is a gross irregularity or illegality in a trial, such trial will not bar a retrial.

2) ‘COURT OF COMPETENT JURISDICTION’ :-

The acquittal or conviction, in order to be an actual defence to the charge, must be by
a Court of competent jurisdiction. If the court which held the first trial was not
competent to try the charge put forward at the second trial, this section would have no
application.6 A trial by a Court not having jurisdiction is void ab initio, and the
accused, if acquitted, is liable to be re-tried.7 Where a case under section 161/116 of
the Penal Code was distributed to the special Judge and section 165A, was not
included in the schedule at the time, the Judge took Cognizance of the case but
subsequently the charge and conviction was under section 165A, it was held that the
section applied to the Magistrates and not to a Special Judge whose jurisdiction arose
not on his taking cognizance under section 190 of the Code but only on the case for an
offence specified in the schedule being distributed to him by the State Government by
a notification. Such a defect of jurisdiction, therefore, could not be cured. The Special
Judge was consequently not a Court of competent jurisdiction and the proceedings
before him were null and ineffectual.8 Jurisdiction is legal authority to determine the
case on the merits. Where the Court has no jurisdiction over the subject-matter, it is
not competent to try.

3) ‘FOR AN OFFENCE’ :-
The act or omission against which proceedings are taken must amount to an offence.
A person against whom security proceedings are taken under section 107 cannot be
said to have committed an offence. Security proceedings do not come within the
purview of this section.9 A dismissal in default of an application for maintenance
under section 125 and 126 of the Code does not amount to an acquittal of an offence,
and a second application on the same facts is therefore, maintainable and not barred
by this section.10

Where the accused was convicted and sentenced with imprisonment and fine, it was
held that the suit filed by the widow of the deceased for damages is not hit by the
principle of double jeopardy contained in section 300 or Article 20(2) of the
6
Purnananda Das Gupta vs Emperor, (1939) 1 Cal 1 (SB).
7
Emperor vs Jivaram Dankarji, ILR (1916) 40 Bom 97.
8
Bhajahari Mondal vs State of West Bengal, AIR 1959 SC5.
9
In re Muthia Moopan, (1913) ILR 36 Mad 315.
10
A. W. Khan vs Zaitun Bi, (1950) ILR 48 All 501.

9
 Constitution, simply because a civil action for damages is not prosecution and a
decree for damages is not punishment.11

4) ‘CONVICTED OR ACQUITTED’ :-
Second trial is barred when the accused is convicted or acquitted, i.e., the cause must have
been heard and determined. There is a distinction between “acquittal” and “discharge”.
Discharge of the accused does not amount to an acquittal. A person is said to be discharged
when he is relived from legal proceedings by an order which does not amount to judgement,
which is the final order in a trial terminating in either conviction or acquittal of the accused.
An order of discharge is not a judgement. Discharge may take place either after the
preliminary inquiry or during a trial before a Magistrate before the accused has been called
upon to plead. When there is no prima facie case against the accused and he has not been put
on his defence, nor any charge drawn up against him to which he could plead, he should be
discharged and not “acquitted.” A man who in law is only “discharged” may again be charged
with the same never be put on his trial again for the offence of which he has been acquitted. A
discharge leaves the matter at large for all purposes of judicial inquiry, and there is nothing to
prevent the Magistrate discharging the accused, from inquiring again into the case. When the
special judge discharged the accused for the reason that there was no proper sanction and that
he had no jurisdiction to take cognizance of the offence and therefore the entire prosecution
proceedings were void ab initio, it could not be construed as acquittal. Hence, second trial
was held not barred.12

A wrong order of acquittal will not bar a subsequent trial. But, if a person, who ought to have
been acquitted, is erroneously ordered to be discharged only, the order of discharge will be
treated as one of acquittal and will bar a retrial. However, when a Magistrate acquitted the
accused in a private complaint for the absence of the complainant on the same facts was held
to be barred by section 300.13.

5) ‘WHILE SUCH CONVICTION OR ACQUITTAL REMAINS I N

FORCE’ :-
That is, so long as the judgement or order has not been set aside by a Court of appeal or
revision. If it is set aside, the accused can again be put on his trial, because the previous trial
is annulled thereby.

11
Suba Singh vs Davinder Kaur, AIR 2011 SC 3163.
12
K. Thankavvan vs Union of India, 1989 CrLJ 2374 (Ker).
13
Rabindra Dhal vs Jairam Sethi, 1982 CrLJ 2144 (Ori).

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 6) ‘SHALL...NOT BE LIABLE TO BE TRIED AGAIN FOR THE SAME
OFFENCE’ :-
The first conviction or acquittal is a bar to a second trial if the offence is the same. If the
offences be different and based on different facts, though based on different facts, though
based on the same evidence, the previous trial does not bar a second trial. “Same Offence”
means not the same eo nomine but the same criminal act or omission.

Where there was a criminal trial for certain offences under TADA, along with other offences
under the IPC, a subsequent trial for offences under TADA based on the same facts was held
to be barred. The conviction of the accused in the subsequent trial was set aside. 14

7) ‘NOR ON THE SAME FACTS FOR ANY OTHER OFFENCE’ :-

This is a very important limitation. The offence must be the same or some other for which a
separate charge might have been made at the first trial on the same facts. If a charge might
have been made for another offence in the first trial, the accused cannot be tried again for
such offence. The protection afforded by this section extends to different offences only when
they are based on the same facts and fall within the provisions of section 221(1) or section
221(2). 15 The finality of the finding of fact at an earlier stage to be binding and conclusively
in subsequent stage in the same case would depend on the question as to what the allegations
were, what facts were required to be proved and what findings were arrived at. 16

SECTION 300 AND DOUBLE JEOPARDY UNDER

ARTICLE 20(2)

Section 300 and Article 20(2) of the Constitution embody the well known principle of
criminal jurisprudence that “no one should be put in peril twice for the same offence”. The
only difference between the two provisions is that the Double Jeopardy under section 300
embodies both the principles of common law known as ‘autrefois acquit’ and ‘autrefois
convict’ while in the constitution only one principle embodies that is ‘autrfois convict’.

According to the article 20(2) of the Constitution of India which says ‘No person shall be
prosecuted and punished for the same offence more than once.’ Here words referred used are
14
State of T.N. vs Nalini,1999 CrLJ 3124.
15
Queen Empress vs Subedar Krishnappa, 1899 1 Bom LR 15.
16
Amrittal Mehta vs State of Gujarat, AIR 1980 SC 301.

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prosecuted and punished which implies that it works on the autrefois convict principle. Thus,
under Constitution bar is against a person being subjected to punishment twice for the same
offence. Hence, it can be inferred that if the person was acquitted, than there will be no bar on
subsequent trial on the same offence under the article.

Whereas in the Section 300(1) both words convicted and acquittal used, which means its bars
the retrial on the same offences or different offences on the same facts if the accused got
convicted or acquitted once.

The scope of section 300(1) CrPC has wider scope than article 20(2) of the constitution as
section 300 CrPC as it bars the trial of accused on the same offence or different offences on
the same facts again once he got acquittal or conviction on the earlier trial on the same
offence or different offence on the same facts. However, article 20(2) gives protection to the
accused on the same offence only.

The question of validity of prosecution and punishment for same offence more than once
came up for consideration before High Court of Kerala in Abdul Salam vs State of Kerala.17
The Court held that where a person was prosecuted and punished in a foreign country for an
offence under the law in force in that country, he could be prosecuted in India for the
commission of an offence under law in force in India. The reason being that the prosecution
in India is not for the act which was made an offence under the law in force in foreign
country, but it was for the act which was an offence under the law in force in India. The court
emphasised that in order to attract the provision contained in Article 20(2), identity of the
offence is an essential prerequisite. Therefore, the previous prosecution and connection or
acquittal does not bar a subsequent prosecution and trial for a separate and distinct offence
even though the two offences arise out of the same facts.

EXCEPTIONS

17
2003 (1) AIR 499 (502) Ker.

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 Section 300 of the code also recognises certain exceptions where under certain
circumstances; the retrial of the accused person is possible. These circumstances are as
under:

1. TRIAL ON SEPARATE CHARGE:-

Where the charge on the second trial is for a distinct offence, the trial is not barred. 18 A conviction for
affray on a prosecution initiated by the police was held no bar to a subsequent trial for causing hurt on
a complaint laid by the party injured.19 When the previous case was tried, the prosecution did not
know of other offences committed even though they were committed along with those for which the
accused was tried. Therefore, he could not be charged of conspiracy. Subsequently, he could be
charged of such an offence and such trial would not be barred by section 300(1). 20

Prior consent of the State Government is required to be taken before a new prosecution is launched on
the basis of this provision, so that the accused is not proceeded against for the second time as a matter
of course. This act as a safeguard against abuse of power under this sub-section. The provision applies
where a second charge-sheet has been filed after acquittal of the applicant with the consent of the
State Government for a distinct offence in which the separate charge might have been made against
him at the formal trial under section 220(1) of the Code. 21

2. SUBSEQUENT TRIAL FOR FURTHER CONSEQUENCES:-

The facts or circumstances must be such as to indicate a different kind of offence of which there could
be no conviction at the first trial. The new evidence must constitute a different kind of offence for
which the accused could not have been tried at the first trial. The new facts or consequences must
have occurred since the conviction or acquittal at the first trial. For instance, if the new facts or
consequences were known to the Court at the time of the first trial, a second trial for an offence
constituted by the new facts would be barred. A and B were charged for causing simple hurt to C.
The case was compounded and both the accused persons were acquitted. Subsequently, C died of the
injury inflicted by A and B. It was held that A and B could be tried for culpable homicide

3. TRIAL BEFORE INCOMPETENT COURT:-

Section 300(4) of the code states as “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.”
Illustrations (e) and (f) illustrate the significance of this sub-section.
18

19
Emperor vs Ram Sukh, (1925) ILR 47All 284.
20
I.M.Sharma vs State of Andhra Pradesh, 1978 CrLJ 392(AP).
21
Manipur Administration vs Bira Singh, AIR 1965 SC 87.

13
Illustration (e) of section 300:- “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.” In illustration (e), the offence of robbery is not triable by a Magistrate of
the second class. It is triable only by a Magistrate of the first class.

Illustration (f) of Section 300:- “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. In illustration (f), the offence of dacoity is not triable by a Magistrate of the first class;
it is triable only by a Court of Session.

4. POSITION OF DISCHARGED ACCUSED:-

Section 300(5) of the Code states as “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.”

Prior approval of the court which discharged the person or of its superior court acts as safeguard
against misuse of power by the prosecuting authorities.

5. SUB-SECTION (6):-
It states as “Nothing in this section shall affect the provisions of section 26 of the General Clauses
Act, 1897 or of section 188 of this code.”

Section 26 of General Clauses Act, 1897 provides “Where an act or omission constitutes an offence
under two or more enactments, then the offender shall be liable to be prosecuted and punished under
either or any of those enactments, but shall not be liable to be punished twice for the same offence,”
an illegal conviction under another act is no bar to a prosecution under the Penal Code.

6. DISMISSAL OF COMPLAINT, DISCHARGE OF ACCUSED:-

Explanation of the section 300 of the code states as “The dismissal of a complaint, or the discharge of
the accused, is not an acquittal for the purposes of this section.” The cases referred to in the
Explanation are all cases where there was no trial determining the matter. None of the orders here
specified can be regarded as constituting an acquittal in a trial.

7. TRIAL WITHOUT SANCTION:-

The earlier prosecution was without valid sanction. The trial Court was not bound to record a
judgement of conviction or acquittal. The Court said that even if the same was recorded, it could be
said to have been rendered illegally and without jurisdiction. A subsequent trial with proper sanction
was not barred. Hence, the order of the HC quashing the fresh charge-sheet on the ground that no

14
fresh trial was permissible was liable to be set aside with direction to dispose of the matter
expeditiously.22

8. DEPARTMENTAL ACTION AFTER ACQUITTAL FROM COURT:-

In this context, a question arises whether departmental action can be taken against an employee after
his acquittal from the Court of law?

The Allahabad High Court has answered it in the affirmative on the following grounds:-

 When an employee has been acquitted by a Court on some charge, he cannot be

departmentally punished on the same charge. The concerned department cannot sit as an
appellate court.
 But an employee can be departmentally punished on a different charge made out of the same
facts.
 Where several charges arises out of the same facts, and he is acquitted on one of the charges,
he can be departmentally taken up on the remaining charges which were not the subject
matter of the trial in court.

For example, in a case the gate-man did not close the Railway crossing. In Consequences, a truck
clashed against the engine and several persons were killed. The gate-man was tried for rash and
negligent act under Section 304-A IPC and was acquitted. His department dismissed him from service
for dereliction of duty which was challenged. It was held that the gate-man was acquitted under
Section 304-A, IP. The department could proceed against him on a different charge based on the same
facts. The departmental action was considered justified. 23

PRINCIPLE OF ISSUE-ESTOPPEL AND DOUBLE

JEOPARDY

Pointing out the distinction between the issue-estoppel and double jeopardy, the apex court
has observed, that the principle of issue estoppels is different from the rule of double
jeopardy as embodied in section 300 CrPC. The principle of issue-estoppel is altogether a
different principle where an issue of fact has been tried by a competent court on a former
22
State of Karnataka vs C Nagarajaswamy, AIR 2005 SC 4308.
23
Kandhai vs D.O.S N.E. Railway, 1971 All 323.

15
occasion and a finding has been reached in favour of the accused. Such finding would operate
as an estoppels or res judicata against the prosecution, not as a bar to the trial or conviction of
the accused for a different or distinct offence, but as precluding of evidence to disturb the
earlier finding when an accused is tried subsequently for a different offence which might be
permissible by Section 300(2) of the Code. For raising the plea of issue-estoppel there must
be inevitably the same issue in the earlier proceedings between the same parties. Thus, any
issue as between the State and one of the accused person in the same litigation cannot operate
as binding upon the State and one of the accused with regard to another accused.24 The rule of
issue-estoppel relates only to the admissibility of evidence which is designed to upset a
finding of fact recorded by a competent court at a previous trial.25

RECENT JUDGEMENTS

1) State of Mizorm versus C. Sangnghina, AIR 2018 SC 5342.

FACTS:-

Brief facts which led to filing of this appeal are that a complaint was made to the
Superintendent of Police, Mizoram, against the Accused/Respondent on 17.02.2009 by the
President of PRISM alleging misappropriation/mismanagement of public money. On the
basis of the complaint, the Superintendent of Police, ACB conducted an inquiry and
submitted its report on 21.08.2009 with a request for registration of ACB case against the
Accused/Respondent. During inquiry, it was detected that the Respondent has acquired his
valuable assets disproportionate to known sources of income. On receipt of the inquiry report
and after taking the approval of the Government of Mizoram, Vigilance Department, ACB
Case Under Section 13(1)(c)(d)(e) read with Section 13(2) of Prevention of Corruption Act,
1988 (PC Act) and Section 409 IPC was registered against the Accused/Respondent. Charge
sheet was filed Under Section 409 IPC and Section 13(1)(c)(d)(e) read with Section 13(2) of
PC Act. The Special Court, PC Act found that the prosecution sanction against the
Accused/Respondent was issued by the Commissioner-Secretary, Department of Personnel &
Administrative Reforms (DP & AR) directly without sanction of the Governor. After hearing
the parties, the learned Judge, Special Court, PC Act by an order, discharged the
24
Punni Swami vs Venkatachalam, 1977 Cri LJ 431.
25
Manipur Administration vs Bira Singh, AIR 1965 SC87.

16
Accused/Respondent from the charges levelled against him due to lack of proper sanction.
Special Judge closed the criminal case arising out of ACB under Section 13 of the PC Act
read with Section 409 IPC.

Subsequently, after due consideration of the materials, the Governor vide order in
supersession of the earlier granted sanction for prosecution of the Respondent for the
aforesaid offences and other offence punishable under any other provisions of law. In view of
the fresh sanction issued against the Respondent, the Inspector, ACB Mizoram submitted
fresh/supplementary charge sheet along with fresh prosecution sanction against the
Accused/Respondent with further request to accept the fresh/supplementary charge sheet and
to reopen the case.

The learned Judge, Special Court dismissed the plea holding that there is no provision/scope
for review of its own order under CrPC. The Judge found that the second charge sheet is
barred by the principles of "double jeopardy" and accordingly, the application to take the
fresh charge sheet was dismissed..

Being aggrieved by the order the State has preferred Criminal Revision Petition before the
HC and the same was dismissed by the HC affirming the order of the Special Court that the
second charge sheet with fresh sanction cannot be entertained..

HELD:-

The courts are not to quash or stay the proceedings under the Act merely on the ground of an
error, omission or irregularity in the sanction granted by the authority unless it is satisfied that
such error, omission or irregularity has resulted in failure of justice. The whole basis of
Section 300(1) CrPC is that the person who was tried by a competent court, once acquitted or
convicted, cannot be tried for the same offence. The Respondent/Accused has not been tried
nor was there a full-fledged trial. On the other hand, the order of discharge passed by the
Special Court was only due to invalidity attached to the prosecution. When the
Respondent/Accused was so discharged due to lack of proper sanction, the principles of
"double jeopardy" will not apply. There was no bar for filing fresh/supplementary charge
sheet after obtaining a valid sanction for prosecution. The Special Court once it found that
there was no valid sanction, it should have directed the prosecution to do the needful. The
Special Court has not given sufficient opportunities to produce valid prosecution sanction
from the competent authority. The Special Court erred in refusing to take cognizance of the

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case even after production of valid prosecution sanction obtained from the competent
authority and the High Court was not right in affirming the order of the Special Court. The
Special Court and the High Court were not right in holding that the filing of the fresh charge
sheet with proper sanction order for prosecution was barred under the principles of "double
jeopardy".

2) Sangeetaben Mahendrabhai Patel versus State of Gujarat and others AIR

2012 SC 2844.

FACTS:-

This appeal has been preferred against the impugned judgment passed by the Gujarat HC in
which the HC has dismissed the application filed by the present appellant under Section
482 of Criminal Procedure Code, 1973 for quashing the I.CR No. 18 of 2004 and Criminal
Case pending before the Chief Judicial Magistrate, Patan, on the plea of double jeopardy for
the reason that the appellant has already been tried and dealt with under the provisions
of Section 138 of Negotiable Instruments Act, for the same offence. A. Respondent No. 2
filed a complaint i.e. Criminal Case under Section 138 of N.I. Act on the ground that the
appellant had taken hypothecation loan of Rs. 20 lakhs and had not repaid the same. In order
to meet the said liability, the appellant issued cheque and on being presented, the cheque has
been dishonoured. Subsequent, the respondent no. 2 filed an FIR under Sections 406/420 read
with Section 114 IPC with the Sidhpur Police Station for committing the offence of criminal
breach of trust, cheating and abetment etc. In the criminal case filed under Section 138 of N.I.
Act, the trial court convicted the appellant. Aggrieved, appellant preferred Appeal, before the
District Judge wherein, he has been acquitted. Against the order of acquittal, respondent no. 2
has preferred Criminal Appeal before the Gujarat HC which is still pending consideration.
Appellant filed an application under Section 482 Cr.P.C., seeking quashing of ICR No. 18 of
2004 and Criminal Case, pending before the Chief Judicial Magistrate, Patan, on the grounds,
inter-alia, that it amounts to abuse of process of law. The appellant stood acquitted in
criminal case under Section 138 of N.I. Act. Thus, he cannot be tried again for the same
offence.

APPELLANT CONTENTION:-
The appellant, has submitted that the ICR as well as the criminal case pending before the
CJM, Patan, is barred by the provisions of Section 300 Cr.P.C. and Section 26 of the General

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Clauses Act, 1897 as the appellant has already been dealt with/tried under Section 138 of
N.I. Act for the same offence. Thus, the High Court committed an error in not quashing the
said ICR and the criminal case. It amounts to double jeopardy and, therefore, the appeal
deserves to be allowed.

RESPONDENT’S CONTENTION:-
The provisions of Section 300 Cr.P.C. i.e. `Doctrine of Double Jeopardy’ are not attracted in
the facts and circumstances of the case, for the reason, that the ingredients of the offences
under Sections 406/420 read with Section 114 IPC are entirely distinct from the case
under Section 138 of N.I. Act, and therefore, do not constitute the same offence. The appeal
is devoid of any merit and liable to be dismissed.

ISSUE:-

The sole issue raised in this appeal is regarding the scope and application of doctrine of
double jeopardy. The rule against double jeopardy provides foundation for the pleas of
autrefois acquit and autrefois convict. The manifestation of this rule is to be found contained
in Section 300 Cr.P.C; Section 26 of the General Clauses Act; and Section 71 I.P.C.

CASES REFERRED AND HELD:-

 In Radheshyam Kejriwal v. State of West Bengal & Anr., (2011) 3 SCC 581, The Court
held:

 “The ratio which can be culled out from these decisions can broadly be stated as
follows: Adjudication proceedings and criminal prosecution can be launched
simultaneously;
 Decision in adjudication proceedings is not necessary before initiating criminal
prosecution;
 Adjudication proceedings and criminal proceedings are independent in nature to each
other;
 The finding against the person facing prosecution in the adjudication proceedings is
not binding on the proceeding for criminal prosecution;
 Adjudication proceedings by the Enforcement Directorate is not prosecution by a
competent court of law to attract the provisions of Article 20(2) of the Constitution
or Section 300 of the Code of Criminal Procedure;
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  The finding in the adjudication proceedings in favour of the person facing trial for
identical violation will depend upon the nature of finding. If the exoneration in
adjudication proceedings is on technical ground and not on merit, prosecution may
continue; and
 In case of exoneration, however, on merits where the allegation is found to be not
sustainable at all and the person held innocent, criminal prosecution on the same set
of facts and circumstances cannot be allowed to continue, the underlying principle
being the higher standard of proof in criminal cases.” The ratio of the aforesaid
judgment is not applicable in this case for the reason that proceedings under Section
138 of N.I. Act are still sub judice as the appeal is pending and the matter has not
attained finality.

Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao & Anr., (2011) 2 SCC 703, is
concerned. It has been held therein that once the conviction under Section 138 of N.I. Act has
been recorded, the question of trying a same person under Section 420 IPC or any other
provision of IPC or any other statute is not permissible being hit by Article 20(2) of the
Constitution and Section 300(1) Cr.P.C.

In view of the above, the law is well settled that in order to attract the provisions of Article
20(2) of the Constitution i.e. doctrine of autrefois acquit or Section 300 Cr.P.C. or Section
71 IPC or Section 26 of General Clauses Act, ingredients of the offences in the earlier case as
well as in the latter case must be the same and not different. The test to ascertain whether the
two offences are the same is not identity of the allegations but the identity of the ingredients
of the offence. Motive for committing offence cannot be termed as ingredients of offences to
determine the issue. The plea of autrefois acquit is not proved unless it is shown that the
judgment of acquittal in the previous charge necessarily involves an acquittal of the latter
charge.

Admittedly, the appellant had been tried earlier for the offences punishable under the
provisions of Section 138 N.I. Act and the case is sub judice before the High Court. In the
instant case, he is involved under Sections 406/420 read with Section 114 IPC. In the
prosecution under Section 138 N.I. Act, the mens rea i.e. fraudulent or dishonest intention at
the time of issuance of cheque is not required to be proved. However, in the case
under IPC involved herein, the issue of mens rea may be relevant. The offence punishable
under Section 420 IPC is a serious one as the sentence of 7 years can be imposed. In the case

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under N.I. Act, there is a legal presumption that the cheque had been issued for discharging
the antecedent liability and that presumption can be rebutted only by the person who draws
the cheque. Such a requirement is not there in the offences under IPC. In the case under N.I.
Act, if a fine is imposed, it is to be adjusted to meet the legally enforceable liability. There
cannot be such a requirement in the offences under IPC. The case under N.I. Act can only be
initiated by filing a complaint. However, in a case under the IPC such a condition is not
necessary.

There may be some overlapping of facts in both the cases but ingredients of offences are
entirely different. Thus, the subsequent case is not barred by any of the aforesaid statutory
provisions. Hence, appeal dismissed.

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 CONCLUSION

After understanding the double jeopardy principle under section 300 CrPC and article
20(2) of the Constitution we can say that the scope of CrPC principle is wider than the
constitution’s principle. In view of the above, the law is well settled that in order to
attract Section 300 Cr.P.C. Ingredients of the offences in the earlier case as well as in
the latter case must be the same and not different. The test to ascertain whether the
two offences are the same is not identity of the allegations but the identity of the
ingredients of the offence. The necessity of such principle is to save the accused from
the humiliation and trauma which he has to go through if multiple trials been allowed
for the same offence. For effective criminal justice administration the need for such
principle is essential. By analysing the section 300 and recent judgements it is well
established that the person cannot be humiliated and tried again and again for the
same offence or for the different offence which arose from the same facts of which he
acquitted or convicted once.

This principle bars the second trial but in certain circumstances the accused can be
tried again like the acquittal or conviction is done by incompetent court, he was
discharged etc. Hence, the hypothesis on which this project stands proved
substantially.

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 BIBLIOGRAPHY

Books:
 COURSE MATERIAL ON CRIMINAL LAW-IV COMPILED BY PROF.
DIVYA SALIM MA’AM
 THE CODE OF CRIMINAL PROCEDURE WRITTEN BY DR. N. V.
PARANJAPE PUBLISHED BY CENTRAL LAW AGENCY
 RATANLAL AND DHIRAJLAL, THE CODE OF CRIMINAL PROCEDURE,
22ND EDITION PUBLISHED BY LEXISNEXIS
 CRIMINAL PROCEDURE AND POLICE, A PROFESSIONAL STUDY BY
PROF. HASAN ASKARI PUBLISHED BY ASIA LAW HOUSE.

Statutory Acts:
 CODE OF CRIMINAL PROCEDURE, 1973
 INDIAN PENAL CODE (45 OF 1860)

Websites:
 https://www.manupatrafast.in
 http://kanoon.nearlaw.com/2018/01/06/section-300-double-jeopardy/
 https://www.lawctopus.com/academike/autrefois-acquit-autrefois-convict/

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