Autrefois acquit and autrefois convict are French terms. Autrefois means once or formerly. Accordingly, autrefois acquit and convict means formerly or once acquitted or convicted. Both the terms relate to the concept of double jeopardy. Double jeopardy prosecution or punishment for the person twice for the same offence.
Article 20(2) of Constitution
Article 20(2) of the Constitution of India states that no person shall be prosecuted and punished for the same offence more than once. This is a remedy against the conviction of a person twice for the same offence.
The constitutional right guaranteed by Article 20(2) against prosecution are often successfully invoked only where the prior proceedings on which reliance is placed must be of a criminal nature instituted or continued before a Court of law or a Judicial Tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.
There is no punishment within the meaning of Article 20(2) unless it’s preceded by a prosecution within the sense explained above. In the case of Maqbool Hussain v. State of Bombay[i] 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 as stated in the Constitution of India has some conditions to be fulfilled.
Section 300, Code of Criminal Procedure
Section 300- Person once convicted or acquitted not to be tried for the same offence.
Section 300(1) states the following conditions:
1. The previous trial of the accused should have been done by the court of competent jurisdiction.
2. 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).
At an equivalent time, an individual can’t be tried for an offense that he has been convicted previously. With reference to sub-section (1) of section 300 the second trial of an individual is barred albeit if it is not for an equivalent offense, on the other hand if it is based on an equivalent facts for the other offense that a charge may be against him under section 221(1) or that he may need been convicted under section 221(2).
Section 221(1) provides that where it’s doubtful on the idea of the facts of the case that what offense has been committed, the accused are often charged with all such offenses or any of such offenses; or he could also be in alternative charged of getting committed anybody of the said offenses.
Section 221(2) provides that if the accused has been charged with one offense and it appears from the evidence that he committed a special offense that he might have been charged under the provisions of sub section (1), he could also be convicted with the offence which he’s shown to be committed, although he wasn’t charged with it.
Section 300(2) – According to this section, when the charge on the second trial is for a different offence, the trial is not barred. The prior consent of the state government is required to be taken before a new prosecution as under this section. In the case of Emperor V Ram Sukh[ii]
This section acts as a remedy against abuse of the power conferred in accordance to autrefois acquit and convict.
Section 300(3) – The sub section states that the facts must be of such a nature that they indicate a different kind of offence in the second trial. The newly presented facts must be in pursuance to the act introduced during formal trial. The facts already known during first trial cannot be constituted as new facts during the second trial. Such a trial would be barred.
Section 300 (4)- The conviction or acquisition of a person by a court which was not competent for the trial of such offence cannot bar the second trial for the same offence by a competent court.
Section 300(5) – Prior approval of the court which discharged the person of the superior court acts as a safeguard against misuse of power by the prosecuting authorities.
Section 300(6) – Nothing contained in this section shall affect section 26 of General Clauses Act, 1897 or Section 188 of section 26 of Act only states that if there are two or more enactments under which it is an offence than you can be punished only under one act and not both. It means you cannot be punished twice for the same offence under two different acts.
1. A has been tried for robbery and has been acquitted. The second trial cannot take place on the ground that some facts about that robbery where missing during the first trial.
2. D has been tried for committing rape to a girl and has been convicted. Later, the girl dies due to severe injuries, D can be tried for culpable homicide.
3. P is charged before a court of session and convicted of the culpable homicide of Q. P may not afterwards be tried on the same facts for murder.
4. R was tried for a crime under Section 379 IPC. Later, it was found that the act was also an offence according to Section 253 of code. The trial was not barred as both the offences are different.
The concept of autrefois acquit and autrefois convict are two halves of a single principle of double jeopardy. Along with providing remedies it also has some restrictions according to which they are imposed. Article 20(2) of the Constitution provides a basis for enforcement of the above-mentioned concept.
Edited by Pushpamrita Roy
Approved & Published – Sakshi Raje
[i]Maqbool Hussain V. State of Bombay 1953 AIR 325
[ii] 1925 ILR 47 All 284: Air 1928 Bom 177.