Double Jeopardy, and Who May Conduct the Prosecution

The Explanation, which is the most quoted line of the section. The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.

The four exceptions.

Sub-section (2), a distinct offence. A person acquitted or convicted may afterwards be tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made at the former trial under section 243(1).

Sub-section (3), consequences that had not happened. A person convicted of an offence constituted by an act causing consequences which, together with that act, constitute a different offence, may afterwards be tried for that different offence if the consequences had not happened, or were not known to the Court to have happened, when he was convicted. This is the hurt that becomes a death.

Sub-section (4), an incompetent first Court. A person acquitted or convicted of an offence constituted by certain acts may notwithstanding that be charged with and tried for any other offence constituted by the same acts, if the Court which first tried him was not competent to try the offence now charged.

Sub-section (5), a discharge under section 281. A person discharged under section 281, which is the power to stop proceedings in a summons case instituted otherwise than on complaint, shall not be tried again for the same offence except with the consent of the Court which discharged him or of a Court to which it is subordinate.

Sub-section (6), what is untouched. Nothing in the section affects section 26 of the General Clauses Act, 1897 or section 208 of the Sanhita. Section 26 of the General Clauses Act deals with an act punishable under two enactments; section 208 of the Sanhita deals with an offence committed outside India.

The illustrations, which are worth learning as they stand.

(a) A is tried for theft as a servant and acquitted. He cannot afterwards, while the acquittal stands, be charged with theft as a servant, or on the same facts with simple theft or criminal breach of trust. (b) A is convicted of grievous hurt; the injured man afterwards dies. A may be tried for culpable homicide. (c) A is convicted by a Court of Session of the culpable homicide of B. He may not afterwards be tried on the same facts for the murder of B. (d) A is convicted by a first class Magistrate of voluntarily causing hurt. He may not afterwards be tried for voluntarily causing grievous hurt on the same facts, unless the case falls within sub-section (3). (e) A is convicted by a second class Magistrate of theft from the person. He may afterwards be tried for robbery on the same facts. (f) A, B and C are convicted by a first class Magistrate of robbing D. They may afterwards be tried for dacoity on the same facts.

Illustrations (c) and (e) look contradictory until you see which sub-section each rests on. In (c) the Court of Session was competent to try murder, so sub-section (4) does not help the prosecution. In (e) a second class Magistrate could not try robbery, so sub-section (4) does. The bar depends on the competence of the first Court, not on the gravity of the second charge.

Sections 338 and 339: who conducts the prosecution

Section 338(1). The Public Prosecutor or Assistant Public Prosecutor in charge of a case may appear and plead without any written authority before any Court in which the case is under inquiry, trial or appeal.

Sub-section (2), the private advocate. If a private person instructs his advocate to prosecute, the Public Prosecutor or Assistant Public Prosecutor in charge shall conduct the prosecution, and the privately instructed advocate shall act under his directions, and may, with the permission of the Court, submit written arguments after the evidence is closed.

So a victim's counsel is not shut out; he is subordinated. The public prosecution remains public.

Section 339(1), permission. Any Magistrate inquiring into or trying a case may permit the prosecution to be conducted by any person other than a police officer below the rank of inspector; but no person other than the Advocate-General, Government Advocate, Public Prosecutor or Assistant Public Prosecutor is entitled to conduct it without such permission.

The proviso. No police officer shall be permitted to conduct the prosecution if he has taken part in the investigation into the offence.

Sub-section (2). A person conducting the prosecution may do so personally or by an advocate.

Two limits in one section: rank (not below inspector) and investigation (the investigator cannot prosecute his own case).

Sections 340 and 341: the defence

Section 340. Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under the Sanhita, may of right be defended by an advocate of his choice.

Section 341(1), legal aid. Where, in a trial or appeal before a Court, the accused is not represented by an advocate, and it appears to the Court that he has not sufficient means to engage one, the Court shall assign an advocate for his defence at the expense of the State.

Sub-section (2). The High Court may, with the previous approval of the State Government, make rules for (a) the mode of selecting such advocates, (b) the facilities to be allowed to them by the Courts, and (c) the fees payable to them by the Government, and generally for carrying out sub-section (1).

Sub-section (3), extension. The State Government may by notification direct that, from a specified date, sub-sections (1) and (2) shall apply to any class of trials before other Courts in the State as they apply to trials before Courts of Session.

Section 342: a corporation as accused

Sub-section (1), the definition. "Corporation" means an incorporated company or other body corporate, and includes a society registered under the Societies Registration Act, 1860.

Sub-section (2). Where a corporation is an accused, it may appoint a representative for the inquiry or trial, and the appointment need not be under the seal of the corporation.

Sub-section (3), the substitution. Where a representative appears, every requirement that a thing be done in the presence of the accused, or read or stated or explained to the accused, is a requirement that it be done in the presence of, or read or stated or explained to, the representative; and a requirement that the accused be examined is a requirement that the representative be examined.

Sub-section (4). Where no representative appears, those requirements do not apply.

Sub-section (5), the presumption. Where a statement in writing purporting to be signed by the managing director, or by a person duly authorised by him having, or being one of the persons having, the management of the affairs of the corporation, saying that the person named has been appointed as its representative, is filed, the Court shall presume, unless the contrary is proved, that he has been so appointed.

Sub-section (6). Any question whether a person appearing as a representative is or is not such representative shall be determined by the Court.

A worked example

A first class Magistrate convicts Sohail of voluntarily causing hurt to Bala. Two months later Bala dies of the injury.

Can Sohail be tried for culpable homicide? Yes. This is illustration (b) read with sub-section (3): the consequence, death, had not happened, or was not known to the Court to have happened, at the time of conviction.

Change it. Bala had already died before the trial, and everyone knew it, and the Magistrate convicted only of hurt. Now sub-section (3) does not apply, because the consequence had happened and was known. The prosecution must look elsewhere: was the Magistrate competent to try culpable homicide? He was not, so sub-section (4) opens the door.

Change it again. The first trial was before the Court of Session and the conviction was for culpable homicide. He cannot afterwards be tried for murder on the same facts, illustration (c), because that Court was competent to try murder.

A complaint against Sohail on the same facts had earlier been dismissed. No bar. The Explanation says the dismissal of a complaint is not an acquittal.

And an earlier charge of a different offence was discharged. Still no bar; discharge is not acquittal. But if the release was under section 281, a fresh trial for the same offence needs the consent of the discharging Court or a Court to which it is subordinate, sub-section (5).

Now the second trial begins. The complainant's family engages an advocate. He may appear, but the Public Prosecutor in charge conducts the prosecution, and the private advocate acts under his directions and may, with the Court's permission, file written arguments after the evidence is closed, section 338(2).

The investigating officer, a sub-inspector, offers to conduct it. Twice barred: he is below the rank of inspector, and he took part in the investigation, section 339(1) and its proviso.

Sohail has no advocate and no means. The Court shall assign one at the expense of the State, section 341(1). His right to an advocate of his choice if he can engage one is section 340.

Suppose the accused were a company. It may appoint a representative, without a seal; everything the Sanhita requires to be done in the accused's presence is done in the representative's presence; a written statement of appointment signed by the managing director raises a presumption; and if the appearance is questioned, the Court decides, section 342.

Distinctions

What this does NOT mean

Section 337 does not bar a retrial after an appellate court sets aside the verdict. The bar operates only while the conviction or acquittal remains in force.

It does not bar a second trial merely because the facts overlap. The bar is on the same offence, and on charges that could have been framed under section 244; sub-sections (2), (3) and (4) then carve out three situations where a second trial is allowed.

Section 338(2) does not exclude the victim's advocate. It places him under the direction of the Public Prosecutor and lets him file written arguments with the Court's permission after the evidence is closed.

Section 341 is not confined to Sessions trials. It applies to a trial or appeal before a Court, and sub-section (3) allows the State Government to extend it to other classes of trial.

And section 342(4) is not a punishment for a corporation that stays away. Where no representative appears, the requirements about presence and examination simply do not apply; the trial is not thereby stopped.

Quick revision

• 337(1): tried by a competent Court and convicted or acquitted, no second trial while that stands, for the same offence or for charges that might have been framed under section 244.
• Explanation: dismissal of a complaint and discharge are NOT acquittals.
• 337(2): a distinct offence, with the consent of the State Government. 337(3): consequences that had not happened or were unknown. 337(4): the first Court was not competent. 337(5): a section 281 discharge needs the discharging Court's consent. 337(6): section 26 of the General Clauses Act and section 208 are untouched.
• 338: the Public Prosecutor appears without written authority and conducts the case; a privately instructed advocate acts under his directions and may file written arguments with permission after evidence closes.
• 339: a Magistrate may permit any person not a police officer below inspector to conduct the prosecution; no investigator may prosecute his own case; the Advocate-General, Government Advocate and Public Prosecutors need no permission.
• 340: the accused may of right be defended by an advocate of his choice.
• 341: unrepresented and without sufficient means, the Court shall assign an advocate at State expense; High Court rules with the State Government's approval; extendable by notification.
• 342: a corporation, including a registered society, may appoint a representative without seal; presence and examination requirements attach to him; no representative, no such requirement; a managing director's written statement raises a presumption; disputes decided by the Court.

Test yourself

1. Is the protection in section 337 the same as Article 20(2)? No. Article 20(2) protects a person prosecuted and punished, so it needs a conviction; section 337 protects a person convicted or acquitted, and it is therefore wider.

2. A complaint against the accused was dismissed. Can he be tried again on the same facts? Yes. The Explanation to section 337 says the dismissal of a complaint, and the discharge of the accused, are not acquittals for the purposes of that section.

3. A is convicted of grievous hurt and the victim then dies. Can A be tried for culpable homicide? Yes, under section 337(3) and illustration (b), because the consequence had not happened, or was not known to the Court to have happened, when he was convicted.

4. Why may a man convicted of theft from the person by a second class Magistrate be tried for robbery, when a man convicted of culpable homicide by a Court of Session may not be tried for murder? Because section 337(4) turns on the competence of the first Court. A second class Magistrate could not try robbery; a Court of Session could have tried murder.

5. May the investigating officer conduct the prosecution? No. The proviso to section 339(1) bars any police officer who has taken part in the investigation, and the sub-section separately bars a police officer below the rank of inspector.

6. When must the Court provide the accused a lawyer at State expense? In a trial or appeal, where he is not represented by an advocate and it appears to the Court that he has not sufficient means to engage one; section 341(1) says the Court shall assign one.

7. How is a company examined under section 351? Through its representative. Section 342(3) provides that a requirement that the accused be examined is to be construed as a requirement that the representative be examined.