Principle of ‘autrefois convict’ or ‘double jeopardy’ - Indian Laws - General

Principle of Autrefois convict or Double jeopardy The fundamental right which is guaranteed in Article 20(2) enunciates the principle of autrefois convict or double jeopardy . The roots of that principle are to be found in the well established rule of the common law of England that where a person has been convicted of an offence by a Court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence . (Per Charles, J. in Reg v. Miles ). To the same effect is the ancient maxim Nemo bis debet puniri pro uno delicto , that is to say that no one ought to be twice punished for one offence or as it is sometimes written pro eadem causa , that is, for the same cause. This is the principle on which the party pursued has available to him the plea of autrefois convict or autrefois acquit . The plea of autrefois convict or autrefois acquit avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned. . . . The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of autrefois acquit is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter . ( Vide Halsbury s Laws of England, Hailsham Edition, Vol. 9, pp. 152 and 153, para 212 ). This principle found recognition in section 26 of the General Clauses Act, 1897 , 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, and also in section 403(1) of the Criminal Procedure Code, 1898 , A person who has been tried by a court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains 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 section 236, or for which he might have been convicted under section 237 . The Court then referred to the provisions of the Sea Customs Act, 1878 and held : We are of the opinion that the Sea Customs authorities are not a judicial Tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court or judicial Tribunal necessary for the purpose of supporting a plea of double jeopardy. It, therefore, follows that when the Customs authorities confiscated the gold in question neither the proceedings taken before the Sea Customs authorities constituted a prosecution of the appellant nor did the order of confiscation constitute a punishment inflicted by a Court or judicial Tribunal on the appellant. The appellant could not be said by reason of these proceedings before the Sea Customs authorities to have been prosecuted and punished for the same offence with which he was charged before the Chief Presidency Magistrate, Bombay, in the complaint which was filed against him under section 23 of the Foreign Exchange Regulation Act. INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA VERSUS VIMAL KUMAR SURANA- 2012 (6) TMI 252 - SUPREME COURT