Explain the Doctrine of Bar of autrefois acquit and autrefois convict

Question: Explain the Doctrine of Bar of autrefois acquit and autrefois convict. [JJS 2018]

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Answer

Autrefois acquit and Autrefois Convict are the two most important and basic doctrines for a trial to be fair. Autrefois Acquit refers to that a person cannot be put on a trial for an offence, he has been previously acquitted for, similarly, Autrefois Convict refers to that a person cannot be put on trial for the same offence; he has been previously convicted for.

The combination of both doctrines gave birth to the Rule against double jeopardy. This Rule refers to that a person cannot be tried for the same offence again if previously he has been either convicted or acquitted.

The doctrines have been guaranteed as a fundamental right under Article 20 (2) of the Indian Constitution. It has been reiterated by the Courts that a person should not be harassed for an offence twice and has enumerated under Section 300 of the Criminal Procedure Code.

Section 300 of the Cr.PC of 1973 incorporates the doctrine of autre-fois acquit and autrefois convict which was sanctioned in Section 403 of the old Code. Sub-section (2) of Section 403 of the old Code was as follows:

A person acquitted or convicted of any offence may be afterwards tried for any distinct offence for which a separate charge might have been made against him on the former trial Under Section 235, Sub-section (1).

Section 403 of CrPC embodied the well known principle “autrefois acquit” and “autrefois convict.” The section provides that, a person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence 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 offence with which he is subsequently charged.

However, the principle of autrefois convict or of double jeopardy alone is accepted by the Constitution and not the plea of autrefois acquit. This has been ruled by the Supreme Court in Maqbool Hussain v. State of Bombay AIR 1953 SC 325. The question under Article 20(2) of the Constitution can be easily disposed of.

What Article 20(2) says is that no person shall be prosecuted and punished for the same offence more than once. This means that if a person is prosecuted and punished once for an offence he cannot be prosecuted and punished again for the same offence. This does not prohibit proceedings against a person for an offence when he has been Prosecuted and acquitted previously for the said offence.

In the case of Thomas Dana v. the State of Punjab [1959 AIR 375], it was held by the Apex Court that to claim the protection of the rule against double jeopardy enumerated under Article 20(2), it is necessary to show that there was a previous prosecution and that the prosecution led to punishment and the accused is being punished for the same offence again.

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