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This Blog is written by Shivani Agarwal from CPJ College of Higher Studies & School of Law, Delhi. Edited by Anshika Porwal.

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INTRODUCTION

Autrefois is a French term that etymology means previously or formerly.  Convicted means a person being declared guilty of a criminal offense by the verdict of a jury and decision of a judge. Therefore when we say autrefois convict that means formerly convicted. Acquitted means to free someone from a criminal charge by a verdict of not guilty. Similarly, autrefois acquit means formerly acquitted.

ORIGIN

Origin of these two terms can be traced in the common law where they are accepted as the pleas of Autrefois acquit and Autrefois convict. These pleas effect that the trial cannot go ahead due to the special circumstances that these two pleas depict.

A plea of Autrefois acquit means that a person cannot be tried again for an offense for the reason that he has previously been acquitted in the same offense and such a plea can be taken or combined with a plea of not guilty.

Similarly, a plea of Autrefois convict means that a person cannot be tried for an offense for the reason that he has been previously been convicted in an offense and the same can be combined with the plea of not guilty.

However, these two terms are jointly known as the Doctrine of Autrefois Acquit

and Autrefois Convict. This doctrine in a way is the rule again double jeopardy. The rule against double jeopardy means that a person cannot be tried for the same offense once again if he has been either convicted or acquitted in the trial relating to the same offense.

Let us analyze the Doctrine of Autrefois Acquit and Autrefois Convict in India in light of the provisions of Code of Criminal Procedure, 1973  and Constitution of India

ARTICLE 20 OF CONSTITUTION

Article 20(2), of the Constitution of India, states that no person shall be prosecuted and punished for the same offense more than once. This is a remedy against the conviction of a person twice for the same offense.

The right guaranteed by Article 20(2) against prosecution is often successfully invoked only where the prior proceedings on which reliance is placed must be of a criminal instituted or continued before a Court of law or a Judicial Tribunal by the procedure prescribed in the statute which creates the offense and regulates the procedure.

In the case of Maqbool Hussain v. State of Bombay, it was held that the rule of double jeopardy will apply only when the prior conviction was given by a similar authority or a judicial authority. The punishment given by any other authority such customs authority will not be taken into consideration by the court while deciding the same case.

Thus, the remedy provided against double jeopardy has some conditions.

SECTION 300 CODE OF Criminal Procedure

Section 300

(1)  A person who has once been tried by a court of competent jurisdiction for an offense and convicted or acquitted of such offense shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offense, nor on the same facts for any other offense for which a different charge from the one made against him might have been made under subsection (1) of section 221,

(2) A person acquitted or convicted of any offense may be afterward tried, with the consent of State Government, for any distinct offense for which a separate charge might have been against him at a former trial under subsection (1) of section 220.

(3) A person convicted of any offense constituted by any act causing consequences which together with such act, constituted a different offense from that of which he was convicted, maybe afterward tried for such last-mentioned offense, 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 offense constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offense 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 offense with which he is subsequently charged.

(5) A person discharged under section 258 shall not be tried again for the same offense 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.

ANALYSIS OF SECTION 300

Section 300(1) The accused has been tried by a court of competent jurisdiction.

He should be acquitted of the offense alleged to have been committed by him or an offense which he might have been under Section 221(1) or for which he might have been convicted under section 221(2).

An analysis of this section makes it clear that there must be the trial of the accused, that is, hearing and determination on the merits and for the purpose of the ban to subsequent trial as contemplated by section 300(1) there should have been the trial of the accused and on the previous occasion, he must have been convicted or acquitted. If there is no trial then the subsequent trial for the same offense is not barred.

However, the acquittal or the conviction, to  be an actual defense 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 in the second trial, this section would have no application. A trial by a court having no jurisdiction in the case is void ab initio and the accused if acquitted is liable to be re-tried for the same offense.

The person must have been either acquitted or been convicted. It is only then that a person can take the plea of this section in order to bar the second trial for the same offense. Mere discharge of the accused does not amount to an acquittal. A person is said to be discharged when he is relieved from the legal proceeding by an order which does not amount to a judgment. Judgment is the final order in a trial terminating either in conviction or acquittal of the accused. A person who is in law only discharged may be charged again for the same offense if some other testimony is discovered against him; however, a person who is acquitted of a charge can never be put on the trial for the same offense. A discharge leaves the matter at large for all purposes of judicial inquiry and there is nothing to prevent a Magistrate discharging the accused from inquiring again into the case.

However, in a case where a judgment has been passed by a competent court either acquitting or convicting the accused, there so long as the judgment remains in force the person so acquitted or convicted cannot be tried again for the same offense, but where such an order or judgment has been set aside by a Court either on appeal or revision then such a person can again be tried for the same offense because the previous trial is annulled thereby.

The conviction or the acquittal in the previous case cannot be a bar in the trial of the same person for a different offense based on different facts but the same evidence. , there was a criminal trial for certain offenses under TADA (now POTA), along with the other offenses under IPC. The subsequent trial for the offenses under TADA based on the same facts was held to be barred and the conviction of the accused in the subsequent trial was set aside.

Section 300(2) Contemplates a situation where a person might have been charged with and tried in accordance with section 220(1) of CRPC, 1973. In this case, the person who can be so charged may be tried once again even after the order of the conviction or acquittal in the previous case, however with the prior consent of the state government. Section 220(1) provides that if in one series of acts so connected together as to form the same transaction, more offenses than one are committed by the same person, he may be charged with and tried at one trial for, every such offense.

Where a person has been convicted of any offense and a separate charge for another offense could have been made but was not made against him in the formal trial, he should not be liable to be tried again for the other offense as a matter of course because this might lend itself to abuse. For this reason, the latter part of this section envisages the provision that such kind of the second trial can be made only with the prior consent of the State Government. The State Government also is supposed to give its consent after the due consideration of all the facts and circumstances of the case and with the main intendment of the law viz. promotion of justice.

Section 300 (3) Envisages a situation where a person is convicted of any offense by an act causing such consequences, that the act together with the consequences constituted a different offense from the one for which he was convicted. In such a situation if the consequences had not happened or were not known to the court at the time when such person was convicted then he may be afterward tried for such an offense.

However, it must be noted in Section 300(3) that the words used are “a person convicted” and does not include acquitted as in the former sub-sections. Therefore this rule does not apply where he has been acquitted. In order to have a better understanding of this point let us take an example where ‘A’ is tried for causing grievous hurt to a person and is convicted. Later it is found that the person to whom grievous hurt was done he died.

Here in this case, ‘A’ may be tried once again separately for the offense of culpable homicide. However let us presume in the same example that ‘A’ was acquitted of the charge of grievous hurt, and then, in this case, he cannot be tried once again if the person later dies, for the offense of culpable homicide under this section. The reason for keeping the acquittal out of the purview of this section can be logically ascertained in the sense that the section provides that later offense for which the person may be tried, is an offense because of the consequences of the former act and the offense constituted by the former act, being taken together. However when a person is acquitted of the former charge then it is quite clear that he is exonerated from the liability of committing that offense, therefore how and why should a person be tried once again for the consequences that have ensued from the act from the liability of which he has been exonerated. This is the possible logical explanation behind the contemplation of this section by the legislature.

Section 300(4)  Provides that where a person has been acquitted or convicted of any offense constituted by any acts, he may be charged with and tried again for any offense based on the same facts notwithstanding his acquittal or conviction if the court by which he was previously tried was not competent to try the offense with which he is subsequently charged. To provide a better explanation to the section let us take an example where ‘A’ is tried for robbery by a Judicial Magistrate of the first class. However, he is later charged for the offense of dacoit based on the same facts. In this case, since the subsequent charge of the offense of dacoit is not trial by a Judicial Magistrate of first-class and is trial only by the Court of Session, therefore the second trial of such a person irrespective of the fact that whether he has been acquitted or convicted, will not be barred.

Section 300(5) contemplates a situation where a person has been discharged under section 258 of the CRPC, 1973. The section provides that where a person has been so discharged under section 258 he cannot be tried once again for the same offense without the previous consent of the Court which gave such order of discharge or of any other Court to which the former court is subordinate. This provision is in order to provide a check against abuse of power of fresh prosecution especially in respect of discharge under the said provisions thus treating it differently from discharges under other provisions of law.

It should be noted that this section does not apply in case of discharge made in the cases which have been instituted on a complaint. More so an order of discharge under Section 258 can never be regarded as an acquittal for the purpose of section 300(5).

Section 300(6) In clear terms provides that “nothing in section 300 shall affect the provisions of section 26 of the General Clauses Act, 1897 or of section 188 of this code.” Section 26 of the General Clauses Act, 1897 provides: “Where an act or omission constitutes an offense 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 offense.” If the accused was acquitted during the first trial on a specific charge such acquittal will not prohibit a second trial on a separate charge for an offense constituted by the same facts under a different enactment.

ARTICLE 20(2) and SECTION 300 OF CRPC, 1973

The Constitution of India incorporates protection against double jeopardy by including it as a fundamental right under Article 20(2). This article in clear terms incorporates the rule against double jeopardy. It should be noted that the existence of this law in India was before the enactment of our Constitution in the form of Section 26 of the General Clauses Act, 1897. The rule against double jeopardy is an import from the common law system which recognizes a legal maxim “Nemo debet bis vexari” meaning thereby a person cannot be put in peril twice for the same offense.

Article 20 (2) contemplates only the doctrine of Autrefois as convict.  Section 300 of the CRPC when read in light of the Constitutional provision under Art.20 (2) prima facie it appears to us that both the provisions stand, though not completely but partially in contradiction with each other. Where on one hand Art.20 (2) provides a bar to the second trial only in case of a previous conviction, Section 300 of CRPC contemplates a situation where the second trial of a person will be barred for the same offense for either reason i.e. convicted or acquitted.

PROVISIONS OF AUTREFOIS CONVICT AND AUTREFOIS ACQUIT IN OTHER COUNTRIES

1.The 5th Amendment to the U.S. Constitution. In 1791, the 5th Amendment (Amendment V) to the U.S. Constitution was inserted to give effect to the prohibition of double jeopardy. The text of the Amendment says: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation”.

2.The provision in Australia; the prohibition against double jeopardy has also been recognized in Australia. In the landmark case of R v Carroll, the High Court of Australia emphasized the prohibition of double jeopardy.

3.Japanese constitution; Article 39 of the Japanese constitution lays down the provision as to the prohibition of double jeopardy. It reads that: “No person shall be held criminally liable for an act which was lawful at the time it was committed, or of which he had been acquitted, nor shall he be placed in double jeopardy”.

CONCLUSION

The doctrine of Autrefois acquit and Autrefois convict has been included in our Constitution as a fundamental right. The purview of the doctrine is narrower than in statutes like Cr.PC 1973. However, this doctrine is a safeguard against the unlawful prosecution of a person for the same offense for the second time. The pleas of Autrefois acquit and Autrefois convict are one of the preliminary pleas to bar any trial. As we have already analyzed in the article that the rule is to protect humans from being unjustly be punished for the second time in the same offense. According to the law commission, our Supreme Court and High Court have not had a proper opportunity for considering the implications of the rule and any hasty legislation which creates difficulties. We have also taken a look at other countries of the world but it is far from less and we have a long way to go, to protect the citizens from being prosecuted again.

REFERENCES

(1) Maqbool Hussain V. State of Bombay 1953 AIR 325

(2) http://lawtimesjournal.in/what-does-autrefois-acquit-and-autrefois-convict-mean/

(3)https://www.researchgate.net/publication/256056849_Plea_of_Autrefois_Acquit_and_Autrefois_Convict/link/5da481cd45851553ff8fd4fc/download

(4) https://www.lawctopus.com/academike/autrefois-acquit-autrefois-convict/#:~:text=Rule%20against%20double%20jeopardy%20means,of%20various%20leading%20case%20laws.