It is, however, also provided that if a person is acquitted or convicted of any offence, he may be afterwards tried for any distinct offence for which a separate charge might have been made against him at the former trial. However, this can be done only with the consent of the State Government.
The observations of the Parliamentary Joint Committee on this point are pertinent:
“The Committee is of the opinion that where a person has been acquitted or convicted of any offence, and a separate charge could have been, but was not, made against him in the former trial, he should not be liable to be again prosecuted on the other charge as a matter of course, because this might lend itself to abuse. To provide a check against such abuse, the Committee has provided for the consent of the State Government before a new prosecution is launched on the basis of this provision.”
It is further provided that if a person convicted of any offence which is constituted by any act causing consequences, which together with such act constituted a different offence from the one of which he was convicted, he may be afterwards tried for such second mentioned offence, if the consequences had not happened or were not known to the Court to have happened, at the time when he was convicted. (S. 300(3))
Moreover, a person who is acquitted or convicted of any offence constituted by any acts may, despite the acquittal or conviction, be subsequently charged with and tried for any other offence constituted by the same acts, if the Court by which he was tried first was not competent to try the offence with which he is charged subsequently.
Likewise, a person who has been discharged under S. 258 (see Ch. XX) cannot be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Superior Court.
It is also expressly provided that the dismissal of a complaint, or the discharge of an accused does not amount to an acquittal, for the purpose of this section.
Illustrations to Section 300:
(a) A is tried upon a charge of theft as a servant, and acquitted. He cannot afterwards, while the acquittal remains in force, be charged with theft as a servant, or, upon the same facts, with theft simply, or with criminal breach of trust.
(b) A is tried for causing grievous hurt and convicted. The person injured afterwards dies. A may be tried again for culpable homicide.
(c) A is charged before the Court of Session and convicted of the culpable homicide of B. A may not afterwards be tried on the same facts for the murder of B.
(d) A is charged by a Magistrate of the first class with, and convicted by him of, voluntarily causing hurt to B. A may not afterwards be tried for voluntarily causing grievous hurt to Â on the same facts, unless this case comes within S. 300(3), above.
(e) A is charged by a Magistrate of the second class with, and convicted by him, of theft of property from the person of B, A may subsequently be charged with, and tried for, robbery on the same facts.
(f) A, Â and Ñ are charged by a Magistrate of the first class with, and convicted by him, of robbing D. A, Â and Ñ may afterwards be charged with, and tried for, dacoity on the same facts.
It will be seen that S. 300 is based on the maxim, nemo debet bis vexari, i.e., a person cannot be tried for a second time for an offence which is involved in the offence with which he was previously charged.
S. 300 is thus based on the principle that no man’s life or liberty shall be put twice in jeopardy for the same offence on the same set of facts. (Md. Safi, AIR 1966 S. C. 64)
In order that the section may apply, the following three conditions must be satisfied:
(a) The person must have been actually tried by a competent court for the same offence of which he is charged in the second trial.
(b) The person must have been convicted or acquitted in the earlier trial. (Dismissal or discharge is, however, not acquittal.)
(c) The conviction or acquittal must be in force, i.e. it must not have been set aside by a superior court.
The whole basis of S. 300 is that the first trial should have been before a Court which is competent to hear and determine the case and to record a verdict of conviction or acquittal. Therefore, if the Court was not so competent, as for instance, because of lack of jurisdiction, the trial before such a Court is void ab initio, and the accused, even if acquitted by such a Court, is liable to be re-tried. (Jivaram—1915 40 Bom. 67)
Moreover, the act or omission against which proceedings are taken must amount to an offence. A person against whom security proceedings are taken under S. 107 cannot be said to have committed an offence. Therefore, security proceedings do not come within the purview of this section. (Muthia Moopan,—1911 36 Mad. 315)
Art. 20(2) of the constitution of India also provides that no person shall be prosecuted and punished for the same offence more than once.
It is pertinent to note that the provisions of S. 300 on the question of previous acquittal are not the same as the principles underlying the English doctrine of autrefois acquit, inasmuch as the Code makes a clear distinction between discharge and acquittal.
An accused, who was tried for criminal breach of trust as a public servant, in respect of Rs. 12, was acquitted by the Court. Later, he was re-tried for the same offence in respect of another item of Rs. 19 misappropriated during the same period. In the circumstances, the Bombay High Court held that the previous acquittal did not operate as a bar to the second trial. (Kashinath—12 B.L.R. 226)