Second Trial Not 'Double Jeopardy' If Offences Different, Though Arose Out Of Same Set Of Facts: Orissa High Court

The Orissa High Court has clarified that a second trial for offences, other than what was tried in the first trial, does not attract 'double jeopardy' only because both set of offences arose out of same set of facts.Justice Radha Krishna Pattanaik observed, "The expression 'same offence' appearing in Section 300 Cr.P.C. read with Article 20(2) of the Constitution of India means that the offence for which the accused has been tried and the offence for which he is again being tried must be identical. The subsequent trial is barred only if the ingredients of the two offences are identical and not when they are different even though may have resulted from the commission or omission arising out of the same set of facts." Factual Background: A prosecution was launched after a written report was lodged under Sections 342 and 323 read with 34, IPC. The allegation was that respondent no. 2's son, who was working in the house of the petitioners, was ill-treated and assaulted. It ultimately led to the submission of chargesheet under Sections 342 and 323 read with 34, IPC and thereafter, the cognizance was taken of the said offences. At the same time, for the alleged occurrence, the District Labour Officer ('DLO') took up the matter. A complaint was filed by the DLO before the court below under Sections 3 and 14 of the Child Labour (Prohibition and Regulation) Act, 1986. It was argued that pursuant to the complaint filed by the DLO, order of cognizance for an offence under Section 14 of the Act, 1986 was passed and the petitioners were put to trial and later on convicted and sentenced. Against this backdrop, the petitioners pleaded that once having been convicted for an offence under Section 14 of the Act, 1986, for the same incident and set of facts, another prosecution under Sections 342 and 323 read with 34 IPC cannot be maintained. The petitioners therefore approached the Court under Section 482 Cr.P.C. challenging the correctness of the impugned order of cognizance dated 25th April 2008, pending in the file of S.D.J.M. (Sadar), Cuttack on various grounds inter alia contending that such a prosecution is in violation of Article 20 of the Constitution and also Section 300, Cr.P.C. as they could not have been prosecuted once again for the self-same incident which amounts to 'double jeopardy'. Contentions: Mr. S. K. Dalai, counsel for the petitioners, submitted that since Article 20 of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once which is a constitutional right guaranteed with a protection against double jeopardy and also, in view of Section 300, Cr.P.C., a person once convicted or acquitted, not to be tried for the same offence, the learned court below after having failed to take cognizance of the above law, erred in passing the impugned order of cognizance dated 25th April, 2008. Primary Observations of the Court: There is no denial to the fact that the petitioners were proceeded in a complaint filed by the DLO before the court of S.D.J.M. (Sadar), Cuttack which finally ended in conviction for an offence punishable under Section 14 of the Act, 1986. The rule of double jeopardy is based on the principle that once a person convicted or acquitted cannot be subjected to a criminal prosecution for the same offence. The terms 'autrefois acquit' and 'autrefois convict' mean previously acquitted and previously convicted respectively which have been accepted as doctrines that govern the field of criminal trials. The Court observed, "Article 20(2) contains the rule against double jeopardy which enumerates that no person shall be convicted for the same offence more than once which has been borrowed from the 5th Amendment of the US Constitution. Likewise, the Cr.P.C. inculcates the principle of autrefois convict as well as autrefois acquit which has a wider reach under the criminal jurisprudence, whereas, Article 20 of the Constitution of India, 1950 outlines general rule against double jeopardy." Reference to Authorities: The Court made a reference to Thomas Dana v. State of Punjab, AIR 1959 SC 375, wherein it was held by the Supreme Court that to claim protection against double jeopardy as envisaged in Article 20(2) of the Constitution, it is necessary to show that there was a previous conviction and that the prosecution led to punishment and the accused is being punished for the same offence again. The Court also had the opportunity to go through the law laid down in Institute of Chartered Accountants v. Vimal Surana, (2011) 1 SCC 534, wherein the Apex Court held that a person can be convicted for the same action under different Acts as apply to the offences. Therein, prosecution under Sections 419 and 420, IPC was challenged on the ground that the accused had also been subjected to criminal action under Sections 24 and 26 of the Chartered ...

Second Trial Not 'Double Jeopardy' If Offences Different, Though Arose Out Of Same Set Of Facts: Orissa High Court

Jyoti Prakash Dutta

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