Report No. 60
14.2. Autrefois acquit and Autrefois convict and Article 20(2).-
In India the rules of criminal process, known to lawyers as autrefois acquis and autrefois convict, find expression in the Code of Criminal Procedure, and are considered so important that a separate Chapter was assigned to them in the Code of 1898. The principle on which the rules rest is-a 'man may not be put twice in jeopardy for the same offence.1
The provision in the Code of Criminal Procedure2 is very elaborate. For our present purpose, section 300(1) is of great importance. It reads as follows:-
"300(1) a person who has once 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 under sub-section (1) of section 221, or for which he might have been convicted under sub-section (2) thereof."
The provision in section 26 of the General Clauses Act is based on the same principle. But it is not confined to the situation where there has been a prior proceeding, and would appear to be wide enough to bar simultaneous double prosecution also.
1. See Archbold Criminal Pleadings, etc., (1966), p. 122, para. 436 and p. 130, para. 453.
2. Section 300, Code of Criminal Procedure, 1974.
14.2A. Section 71, I.P.C.-
A provision analogous to the latter part of section 26 is to be found in section 71 of the Indian Penal Code also1. We need not discuss it in detail.
1. See section 71, 2nd para., IPC.
14.2B. Two parts of section 26-positive and negative.-
Of course, it should be pointed out that section 26 has a positive as well as a negative content. The positive or permissive content is in the earlier part, where there is a liability to be prosecuted and punished under either of the two enactments, or any of more than two enactments. The negative or prohibitive part is in the latter part of the section, under which there is non-liability to be punished twice for the same offence. We shall discuss the principle of this part of this section.