No double jeopardy bar if there was no trial: Supreme Court

The bar of double jeopardy does not arise if an accused was discharged of a criminal offense, even before the commencement of trial, on the basis of an invalid sanction for prosecution, the Supreme Court has held.

The judgment is based on an appeal filed by the State of Mizoram against an order passed by the Guwahati High Court in August 2015.

The corruption case was filed by the Aizawl police in February 2009 for misappropriation of public money. During the inquiry, it was detected that the respondent had acquired valuable assets disproportionate to known sources of income.

The first invalid sanction for prosecution was issued by the Commissioner-Secretary, Department of Personnel & Administrative Reforms (DP & AR) directly without the Governor’s approval.

Following the discharge of the accused by the special court, the Governor accorded a fresh sanction in December 2013. However, the High Court upheld a Special Court decision to decline to entertain a second charge sheet filed in a corruption case against the accused on the ground of double jeopardy.

Article 20 (2) of the Constitution mandates that a person cannot be prosecuted or punished twice for the same offense.

The court held that if an accused has not been tried at all and convicted or acquitted, the principles of double jeopardy cannot be invoked at all. If an earlier order of sanction was found to be invalid, there is no bar for the competent authority to issue a proper order of sanction for prosecution.

The courts are not to quash or stay the proceedings under any Act merely on the ground of an error, omission or irregularity in the sanction granted by the authority unless it is satisfied that such error, omission or irregularity has resulted in the failure of justice, the SC observed.

About Article 20- Protection in respect of conviction for offenses:

No person shall be convicted of any offense except for violation of the law in force at the time of the commission of the act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense.

No person shall be prosecuted and punished for the same offense more than once.

No person accused of any offense shall be compelled to be a witness against himself.

Article 20 has taken care to safeguard the rights of persons accused of crimes.

Persons here means the citizens, non-citizens as well as corporations.

This article cannot be suspended even during an emergency in operation under article 359.

Article 20 also constitutes the limitation on the legislative powers of the Union and State legislatures.

Ex-Post facto Law Article 20 (1):

It says that no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the Act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense. This is called Ex-Post facto Law. It means that legislature can not make a law which provides for punishment of acts which were committed prior to the date when it came into force. This means that a new law can not punish an old act.

The doctrine of Double Jeopardy:

Article 20(2) says that no person shall be prosecuted and punished for the same offense more than once. This is called Doctrine of Double Jeopardy. The objective of this article is to avoid harassment, which must be caused for successive criminal proceedings, where the person has committed only one crime.

There are two aspects of the Doctrine of Jeopardy viz. autrefois convict and autrefois acquit. Autrefois convict means that the person has been previously convicted in respect of the same offense. The autrefois acquit means that the person has been acquitted on the same charge on which he is being prosecuted. Please note that Constitution bars double punishment for the same offense. The conviction for such offense does not bar for subsequent trial and conviction for another offense and it does not matter some ingredients of these two offenses are common.

Self Incrimination Law:

Article 20(3) of the constitution says that no person accused of any offense shall be compelled to be a witness against himself. This is based upon a legal maxim which means that No man is bound to accuse himself. The accused is presumed to be innocent until his guilt is proved. It is the duty of the prosecution to establish his guilt.

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