By N. C. Jain
Advocate
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The Word
1. ‘Autrefois acquit’ is a preemptory plea to be taken
by the defendant in a criminal proceeding to estop the government from carrying
on with a trial against him. Its etymology is derived from Anglo-French meaning
‘formerly acquitted’. Related to this is ‘Autrefois convict’ and ‘autrefois
attaint’ literally meaning ‘formerly convicted’ and ‘formerly attainted’.
2. The significance of the term lies in the precept embedded
in Anglo-Saxon common law predating the eleventh century, which protects a
person from being tried and indicted for the same offence more than once. Once a
defendant is found not guilty; the case cannot be re-opened for holding him
guilty regardless of any compelling inculpatory evidence found subsequently, nor
can he be tried for the same offence under the same or any different Act.
Conversely, ‘autrefois convict’ protects a person convicted once to be
convicted again under any Act in any criminal proceeding involving action on the
same set of facts.
3. The roots of the principle, as stated by Bhagwati J. in
Maqbool Hussain v. State of Bombay, AIR 1953 SC 325, are to be found in the
well-established rule of 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, (1890) 24 QBD 423(A)]. To the same effect is the
ancient maxim ‘Nimo bis debut punir pro uno delicto’ meaning no one ought
to be twice punished for one offence or, as it is sometimes written, ‘pro
eadem cause’ i.e., for the same cause. This is the principle on which
the party persued has available to him the plea of ‘autrefois convict’ or
‘autrefois acquit’.
4. The fifth amendment of the American Constitution
enunciated the principle as :
“. . . . . . nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb, not shall be compelled,
in any criminal case, to be witness against himself”.
The principle of protection against double jeopardy, as it
has come to be known, is another expression for ‘autrefois convict’ or ‘autrefois
acquit’.
5. The principle is embodied in Indian laws in S. 26 of the
General Clauses Act, 1897, which states that “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”. The maxim
finds expression also in S. 403(1) of criminal Procedure Code 1898 when it says,
“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 u/s.236, or for which
he might have been convicted u/s.237”.
6. The aforesaid common law doctrine and provisions in Indian
as well as foreign laws provided the background for the guarantee of fundamental
right enshrined in Article 20(2) of the Constitution of India, which reads as
under :
“No person shall be prosecuted and punished for the same
offence more than once.”
S. 3(38) of the General Clauses Act, applicable for the
interpretation of the constitution by virtue of Article 367, defines an
‘offence’ to mean any act or omission made punishable by any law for the time
being in force. Expatiating on Article 20(2), the Supreme Court in Maqbool
Hussain case (supra) observed :
“It incorporated within its scope the plea of ‘autrefois
convict’ as known to the British Jurisprudence or the plea of double jeopardy
as known to the American constitution but circumscribed it by providing that
there should be not only a prosecution, but also a punishment in the first
instance in order to operate as a bar to a second prosecution and punishment
for the same offence.”
The Court also, having regard to the whole background,
imported the requirement of prosecution and punishment ‘before a Court of law or
judicial Tribunal’ for invoking Article 20(2) of the constitution and held that
“in order that the protection of Art. 20(2) be invoked by a citizen, there must
have been a prosecution and punishment in respect of the same offence before a
Court of law or a Tribunal required by law to decide the matters in controversy
judicially on evidence on oath, which it must be authorised by law to
administer, and not before a Tribunal which entertains a departmental or an
administrative enquiry, even though set up by a statute, but not required to
proceed on legal evidence given on oath”.
7. The applicability of these two essential ingredients
viz. (i) prosecution and punishment, and (ii) by a Court of law or judicial
Tribunal, came to be examined in the above case where the question to be decided
was whether confiscation of gold by Customs authorities with option to pay an
amount in lieu of such confiscation is punishment by Court of law/judicial
Tribunal to justify the plea based on ‘autrefois convict’ against
pursuing criminal proceedings under the Sea Customs Act and Foreign Exchange
Regulations Act. The Court concluded that far from being authorities bound by
rules of evidence or procedure established by law and invested with power to
ensure their own judgments or orders, the Sea Customs Authorities are merely
constituted administrative machinery for the purpose of adjudging confiscation,
increased rates of duty and penalty prescribed in the Act. As to the nature of
confiscation, it was held that confiscation is more in the nature of proceedings
in rem than proceedings in personam. On both the counts the
protection of ‘autrefois convict’ was denied.
8. In effect the decision in earlier proceedings not only provides res judicata for the succeeding ones, but prevents proceedings to go ahead. In tax laws where an act or omission attracts penalty and is also subjected to prosecution, plea of double jeopardy has been raised in certain prosecution proceedings based on the order imposing penalty. In Gulab Chand Sharma v. H. P. Sharma, Commissioner of Income-tax, Delhi, 95 ITR 117, penalty was imposed u/s.274 read with S. 271 and S. 273 for making a false return and prosecution proceedings were also launched u/s.277 of the Income-tax Act, S. 193 of IPC and also S. 467/471 of IPC, the prosecution proceedings were sought to be quashed on the plea of ‘autrefois convict’. The Court after detailed discussion of various provisions held that the proceedings for the imposition of penalty taken against the accused under the Income-tax Act are distinct from the criminal complaints filed against him. They can, therefore, continue simultaneously. Imposition of penalty is neither a prosecution, nor a punishment for any offence to bar prosecution proceedings. The objects of the two provisions are different. It is an anathema to suppose that when a civil remedy is available, criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import [Pratibha Rani v. Suraj Kumar, 155 ITR 190 (SC)]. The one containing the prosecution and punishment is to vindicate public justice by punishing the offender, whereas the object of the penalty proceedings is to render evasion unprofitable and to secure to the State the compensation for the damages for attempted evasion. They are mutually exclusive remedies [Po Ummali Umma V. lAC, (1967) 64 ITR 669 (Ker.)]
