Double jeopardy
Vishwanath
(Querist) 09 July 2012
This query is : Resolved
Dear All,
A complaint was lodged under different sections of IPC and the case is still at the investigation stage even after two years of FIR. On the same facts another case is filed under Income Tax Act as a PCR to the court. As per article 20(2) of the constitution and sec 300(1) of CRPC an accused cannot even be tried for the same offence or a different offence on the same facts twice. Kindly advice me on what step is to be followed next. As this is a case of Double jeopardy. Can an application be placed before the jurisdictional court to stay the second complaint and quash the same. Kindly advice.
Regards,
Vishwanath
Guest
(Expert) 09 July 2012
The principle of double jeopardy as enshrined in Article 20(2) of the Constitution of India, Section 300 Cr.P.C, Section 26 of the General Clauses Act, and Section 71 I.P.C lays down foundation for the plea of autrefois acquit and autrefois convict. The pre-requisite for the rule of double jeopardy to come into play is that the accused should have been tried for the same offence on an earlier occasion. The second prosecution must be for the same offence. The ingredients of the two offences should be identical. If the offences are distinct the embargo placed by the doctrine of double jeopardy will not be applicable. The doctrine of double jeopardy does not bar prosecution for the same offence under different sections of the same act or under different acts.
Vishwanath
(Querist) 09 July 2012
Dear Mr.Ashish,
At the outset..my gratitude for your valuable reply. Even if the accused has not been tried there are only two possibilities, acquittal or conviction. There cannot be a third option. The second complaint is a photocopy of the First without change of a single word. Facts are exactly the same. May be that an act of the accused(facts) may amount to different offence under different Acts. It would amount to prosecuting a person twice for exactly the same facts(sec300 CRPC). Is the doctrine of Double jeopardy not invited in such a situation. Kindly advice me on procedure of stay and quashing the second complaint.
Regards,
Vishwanath
Guest
(Expert) 09 July 2012
Dear Vishwanath,
Although no conclusive opinion can be given without seeing the complaints, nonetheless I will attempt to answer your query.
The pre-condition for double jeopardy rule to be applicable is that the second prosecution must be for the same offence. The ingredients of one offence should be same as the ingredients of another offence. To determine whether the second prosecution is hit by the rule of double jeopardy the emphasis has to be on the ingredients of both the offences and not the allegations. If the ingredients of both the offences are different, then notwithstanding the rule of double jeopardy the subsequent prosecution is not hit by double jeopardy even if the allegations are same. Principle of double jeopardy does not bar prosecution under different sections of the same act or different acts. However, if the offence falls under two different sections, the sentencing power of the court is circumscribed by s.71 IPC to impose a sentence which does not exceed the maximum sentence which the court could award for any of those offences. Going by your statement of facts, if the investigation in relation to the first complaint has not been completed yet, the trial has effectively not started. Therefore, there is no double jeopardy.
Vishwanath
(Querist) 10 July 2012
Dear Mr Anish,
Thank you so much for your valuable opinion and a healthy discussion on the subject.
Regards,
Vishwanath
Sudhir Kumar, Advocate
(Expert) 27 September 2013
same set of facts can constitute different offenses under different statutes. So these become different charges and not the same charge.
