Report No. 41
Previous Acquittals or Convictions
30.1. Section 403 and Article 20.-
The rules of criminal process, known to lawyers as autrefois acquit and autrefois convict, find their verbal expression in our Code in section 403 and are considered so important that a separate Chapter is assigned to them. The principle on which the rules rest is that "a man may not be put twice in jeopardy for the same offence". This principle is recognised in our Constitution in Article 20. The rule does not rest on any doctrine of estoppel.
Broadly stated the rule is that a person once acquitted or convicted of an offence may not again be tried for the same offence. Article 20 does not in terms mention a previous acquittal; but section 403 does, and goes on to explain in detail the full implications of the expression "same offence". Seven illustrations accompany this section explaining in concrete terms the different situations which the Courts may have to deal with. No particular difficulty in understanding the meaning of these provisions appears to have been felt and we do not, therefore, suggest any change in the language. Nor is any change necessary in the general scheme employed in section 403.
30.2. Section 403(2).-
Su.-section (2) of section 403 permits a person acquitted of any offence to be afterwards tried for any distinct offence for which he might have been separately charged at the former trial under section 235(1). This is as it should be. A suggestion has, however, been made that the second trial should be held within some specified period of limitation so that the accused is not kept under suspense for ever. We do not think any idea of limitation can be safely introduced into criminal trials, and public interest demands that an offence should be ordinarily punishable whenever the offender can be conveniently tried. We are not, therefore, accepting the suggestion.
30.3. Section 403(5).-
Su.-section (5) of section 403 says: "Nothing in this section shall affect the provisions of section 26 of the General Clauses Act, 1897". This section provides that when an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted under either or any of these enactments, but shall not be liable to be punished twice for the same offence. It has been said in certain decided cases1 that since prosecution under "either enactment" is permitted under this general provision, it follows that the acquittal of a person under one enactment would not be a bar to his trial under the second enactment, even when the facts constituting the offence were the same.
We think these observations go too far, as the intention of section 403 obviously is to prevent the trial of a person twice on the same facts. However, out of the cases we have mentioned, two were actually decided on other grounds, and do not create any hindrance in the way of the view we have expressed. We are not, therefore, proposing any change in the language of su.-section (5) which does not interfere with the main principle underlying section 403.
1. Rasool, AIR 1959 Mys 136; K.B. Prabhu v. Emp., AIR 1944 Mad 369; Abdul Ahmad, AIR 1952 All 957.
30.4. Explanation to section 403.-
The Explanation added to the section says that "the dismissal of a complaint, the stopping of proceedings under section 249, the discharge of the accused or any entry made upon a charge under section 273 is not an acquittal within the meaning of this section". A suggestion has been made1 for modifying the explanation by excluding an order of discharge made by a Court after enquiry on the merits, the argument being that if the whole evidence has been considered and found insufficient to sustain a conviction, it is not very different from an order of acquittal and ought, in law, to rank with it.
The difficulty about this suggestion, however, is that while the line between a discharge and an acquittal is unmistakable, no such line can be drawn between an order of discharge made "on the merits" and an order of discharge made otherwise; and should the consideration of the whole evidence be made the test, then a controversy will arise in most cases whether the "whole evidence" was or was not considered.
The prevailing practice is that if an order of discharge has been made after full and proper consideration of the evidence, the Courts will not permit a reopening of the same matter; and that practice should, in our opinion, be sufficient to prevent any unnecessary harassment. We do not, therefore, recommend any change in the Explanation as regards discharge of the accused. Since we are proposing2 the omission of section 273, the words "or any entry made upon a charge under section 273" will have to be omitted from the Explanation.
1. F. 3(2)/5.-L.C., Pt. III, S. No. 52 (Suggestion of a High Court).
2. See para. 23.1 above.
30.5. Issue estoppel in criminal cases.-
In a case decided1 by the Supreme Court in 1956, certain observations were made lending support to a statement of the Privy Council that the maxim res judicata, pro veritate accipitur is no less applicable to criminal than to civil proceedings. The decision of the case did not depend on any such rule, but those observations have been repeated in a few subsequent cases..-3
It has therefore been suggested to us4 that the Supreme Court has perhaps introduced something new into section 403, Cr. P.C. which is not justified and that the Code should in terms forbid the use of the doctrine of res judicata or, as it is sometimes called "issue estoppel", in criminal cases. Alternatively, it has been suggested that the view expressed in Pritam Singh's case should be codified and put into section 403.
1. Pritam Singh v. State, AIR 1956 SC 415 (422).
2. Manipur Administration v. Bira Singh, AIR 1965 SC 87.
3. Mohinder Singh v. State of Punjab, AIR 1965 SC 83 (86).
4. F. 3(2)/5.-L.C., Pt. II, S. No. 33(a) (Suggestion of a High Court Judge).
30.6. Should issue estoppel be provided in the Code.-
We think that section 403 has nothing to do with any question of estoppel, and it must stand by itself. That does not, however, rule out the possibility of putting into the Code some rule of "issue estoppel" if it be otherwise desirable. ' We feel however that legislation on such a matter would at present be unwise. We find from the reported cases that our Supreme Court and our High Courts have not had proper opportunity yet of considering all the implications of the rule, and any hasty legislation may by its rigidity create difficulties. We may, in this connection, mention what Lord Devlin recently said in the House of Lords:1
"The truth is that for estoppel on issues to work satisfactorily the issues need to be formulated with some precision. In civil suits, this is usually done as a matter of record: in criminal process, it is not. If issue estoppel is going to be introduced into the criminal law, the proper basis for it is a system of special verdicts on separate issues. But that would be to introduce a profound change into the working of our law which I am not prepared at present to countenance.
Then since estoppel is available to both parties in civil law, there is the question whether it should be made available to the prosecution in criminal law. No one so far has advocated that it should. But is it necessary in the interests of justice to give the defence unreciprocated advantage? The defence rightly enjoys the privilege of not having to prove anything; it has only to raise a reasonable doubt. Is it also to have the right to say that a fact which it has raised a reasonable doubt about is to be treated as conclusively established in its favour ?"
These considerations have not yet been weighed in our Courts, and it is we think too early to say what kind of rule would be useful for our conditions. We cannot therefore at present accept either suggestion.
1. Connelly v. Director of Public Prosecutions, 1964 AC 1254: (1964) 2 All ER 401.