Doctrine Of Autrefois Acquit And Autrefois Convict 385z2w

‘DOCTRINE OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT’

It is a fundamental principle of criminal jurisprudence that no person should be vexed twice for the same offence (nemo debet bis vexari pro eadem causa). Once a person has been tried and acquitted or convicted of an offence by a competent court, he cannot be tried again for the for the same offence so long as the acquittal or conviction operates. This doctrine is well recognized by the Indian Constitution under Article 20(2) which reads as follows: “No person shall be prosecuted and punished for the same offence more than once”. It is also known as the ‘Rule Against Double Jeopardy’and is treated as one of the fundamental rights. Doctrine Explained Section 300(1) of the Criminal Procedure Code provides that 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 charges from one made against him might have been made, or for which he might have been convicted. Section 300 is based upon the general principle of ‘autrefios acquit’ (formerly acquitted) and ‘autrefios convict’ (formerly convicted) recognized by English Courts. It is also acceptance of the principle of ‘issue-estoppel’ followed in Australia. Started simply, the principle of ‘issue estoppel’ is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached, such a finding would constitute an ‘estoppel’ or ‘res judicata’ between the parties and cannot be reagitated in subsequent proceedings. It is based on the well known doctrine which controls re-agitation of issues which are settled by prior litigation. The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings. In the leading case of Sambasivam v. Public Prosecutor[1], Lord Mac Dermot propounded: “The effect of verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the jurisdiction. Conditions In order that the bar of Section 300 may apply, the following conditions must be satisfied: 1) 2) 3) 4)

the accused must have been tried for an offence, the trial must have been by a competent court, he must have been acquitted of convicted of that offence, and Such conviction or acquittal must be operative. Exceptions There are, however, certain exceptions to the above rule which have been discussed in sub-section (2) to (4) of section 300.

a) Distinct Offences: A person acquitted or convicted of any offences may afterwards be tried with consent of the State Government for any distinct offence for which a separate charge might have been made against him. b) Consequential Acts: A person convicted of any offence constituted of any act may afterwards be tried if consequences take place subsequently which had not happened at the time when he was convicted. c) Jurisdiction of Courts A person acquitted or convicted of any offence may subsequently be tried for any other offence constituted by the same acts if the court by which he was first tried was not competent to try it. d) Dropping of Proceedings A person discharged under Section 258 can be tried again for the same offence only with the consent of the court by which he was discharged or by a superior court. e) Offences Punishable Under Different Acts Where an act or omission constitutes an offence under two or more enactments, the offender can be tried again even if he is tried earlier under a different enactment. f) Offences Committed Outside India When any citizen of India commits an offence outside India or on the high seas or any person not being a citizen of India commits an offence on any ship or aircraft ed in India, he can be tried in India notwithstanding his trial by a foreign court. g) Dismissal of Complaint Dismissal of a complaint cannot be said to be an acquittal and, hence fresh complaint is not barred. h) Discharge of Accused Discharge of an accuse person also does not operate as a bar to institution of fresh proceedings against the accused for the same offence.

Applicability of this doctrine

The principle underlying the plea of Autrefois Acquit is not fully stated merely by saying that an accused person should not be vexed twice by prosecution on the same set of facts. Autrefois Acquit is a plea by a criminal, that he was heretofore acquitted of the same offence. By this plea, a person charged with an offence pleads that he had been tried before and acquitted for the same offence by a competent court. By this plea it is bar to a criminal action, stating that the defendant has already been indicated and tried for the same alleged offence and has been acquitted.

Conversely the principle of Autrefois convict is also another doctrine which needs to be discussed. This rule has originally been enshrined in Article 20 of the Constitution of India which states that “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence, and no person shall be prosecuted and punished for the same offence more than once.” This rule to be studied more so in tax matters as there was a point to be discussed whether prosecution can be launched in a tax case where penalty is already levied. The Supreme Court in Maqbool Hussain vs. State of Bombay[2] observed. “Article 20(2) incorporates 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 circumscribes 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.” Article 20(2) contemplates proceedings of the nature of criminal proceedings and the prosecution in this context means an initiation of proceedings of a criminal nature. The first part of Article 20(1) prohibits a conviction while the second part deals with penalty that may be inflicted on conviction. The word “penalty” has been used to denote the sentence or punishment. Like Clause (2), Clause (1) also contemplates proceedings of a criminal nature. A criminal proceeding may be defined as one, which if carried to its conclusion may result in imposition of sentence such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which, in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and orders aimed at preventing vagrancy are contemplated to be ed. CONCLUSION The doctrine of Autrefois acquit and Autrefois convict has been included as a fundamental right in our Constitution, though the purview of the doctrine is narrower than in other statutes like Cr.PC, General Clauses Act, and that in other countries like U.K, U.S. However it is clear that in such circumstances the Constitution shall prevail. To conclude it can be said that this doctrine is a safeguard and acts as valve against the unlawful prosecution of a person for the same offence for the second time. The pleas of autrefois acquit and autrefois convict are one of the preliminary pleas to bar any trial. As we have already analysed in the whole project that the rule of issue estoppel is also related to the doctrine but even then this rule has not been incorporated in the code as it was thought to be not advisable to do so at present. According to the law commission our Supreme Court and High Court have not had proper opportunity yet of considering all the implications of the rule and any hasty legislation may by its rigidity create difficulties Trial In a warrant case the trial begins with the framing of the charge when the accused is called upon to plead thereto : but in a summons case, as if is not necessary to frame a formal charge, the ‘trial’ starts when the accused is brought before the Magistrate and the particulars of the offence are stated to him. In a case exclusively triable by a court of session the trial begins only after the committal proceedings by the Magistrate. The term “trial” includes appeal and revision, which are a continuation of the first ‘trial’.

Juvenile Delinquency William Coxton in the year 1484 used the word delinquent to refer a person who was found guilty. Juvenile delinquency means the involvement by the teenagers in an unlawful behaviour who is basically under the age of 18 and commits an act which is considered as a crime. A child is known as a delinquent when he/she perpetrate a mistake which is against the law and is not accepted by the society. A child is known as a delinquent when he/she commits a mistake which is against the law and which is not accepted by the society.

A child is born innocent, but due to the unhealthy environment, negligence of the basic necessities and wrong company, a child may turn into a delinquent. Usually, somebody has to have intent to break the law in order to commit a crime, but that is not always the case. A person can be charged with a crime if that person is not aware of the law. No conduct constitutes a crime unless it is declared as criminal in the laws of the country. Delinquent and criminal behaviour may brim among young people as they negotiate the transition from childhood to adulthood in an increasingly complex and confusing world[8].Young people who are at the risk of becoming delinquent usually lives in difficult circumstances[9].

Causes of Delinquent Trajectories Understanding the causes of juvenile delinquency is an integral part of preventing a young person from involvement in inappropriate, harmful and illegal conduct. Four primary risk factors can identify young people inclined to delinquent activities: individual, family, mental health and substance abuse. Often, a juvenile is exposed to risk factors in more than one of these classifications.

Individual Risk Factors Factors in this sphere are identified as any characteristics directly related to or within a specific person that affects the likelihood of that individual engaging in violent and delinquent behavior[10].Several risk factors are associated with juvenile delinquency. A minor whose intelligence level is low and is devoid of proper education is more prone to become involved in delinquent conduct. Other risk factors include impulsive behavior, uncontrolled aggression and an inability to delay gratification. In many cases, multiple individual risk factors can be identified as contributing to a juvenile’s involvement in harmful, destructive and illegal activities.

Family Risk Factors Family traits such as poor parenting skills, family size, home discord, child maltreatment, and antisocial parents are risk factors linked to juvenile delinquency[11].A constant pattern of family risk factors are associated with the development of delinquent behavior in young people. These family risk factors include a lack of proper parental supervision, ongoing parental conflict, neglect, and abuse (emotional, psychological or physical). Parents who demonstrate a lack of respect for the law and social norms are likely to have children who think similarly. Finally, those children that display the weakest attachment to their parents and families are precisely the same juveniles who engage in inappropriate activities, including delinquent conduct.

Mental Health Risk Factors Various mental health factors are also contributing to juvenile delinquency. It is important to keep in mind, that a diagnosis of certain types of mental health conditions- primarily personality disorders cannot be made in regard to a child. However, there are precursors of these conditions that can be exhibited in childhood that tend to end up being displayed through delinquent behavior. A common one is conduct disorder. Conduct disorder is defined as “a lack of empathy and disregard for societal norms”.

Substance Abuse Risk Factors Substance abuse is found in many numbers of cases of juvenile delinquency. Two trends are identified in regard to substance abuse and minors. First, juveniles are using more powerful drugs today than was the case as recently as 10 years ago. Second, the age at which some juveniles begin using drugs is younger. Children in elementary schools are found to be using powerful illegal drugs. The consumption of these illegal substances or the use of legal substances illegally encourages young people to commit crimes to obtain money for drugs. Additionally, juveniles are far more likely to engage in destructive, harmful and illegal activities when using drugs and alcohol.[12]

Search without warrant The circumstances in which a police officer does not need a search warrant to conduct a search are stated in section 165, and these grounds are as follows: 1) Whenever an officer in charge of a police station or a police officer making an investigation has a reasonable grounds to believe that anything necessary for the purpose of an investigation into any offence which he is authorized to investigate may be found in any place and that thing cannot in his opinion be obtained without undue delay without a search, such officer may search for such thing in any place within the limits of such station. 2) Police officer proceeding under sub section (1), shall if practicable, conduct the search in person. 3) If police officer is unable to conduct the search in person and there is no other person competent to make the search present at the time, he may, after recording in writing his reasons for so doing, require any officer subordinate to make the search and order him to search for such thing in such place. 4) If a police officer remained outside the house while the search was being made inside by some subordinate officer, the search was not held to be illegal. 5) Copies of any record made under sub section (1) shall be sent to the nearest magistrate empowered to take cognizance of the offence. The question arose before the Hon’ble supreme court of India as to whether issuance of search warrant infringes fundamental rights and the Hon’ble apex court held AIR 1954 SC 300 that a search and seizure is only a temporary interference with the right to hold premises searched and the articles seized. Hence, no question of violation of Article 19 is involved. Also search and seizure of documents from accused does not amount to infringement of fundamental rights under Article 20(3) of the constitution. However, in reality, police in India is known to use the power given in Section 165 in a very wide manner to fish for evidence in houses of any suspect or non-suspect, and sometimes even as a tool for harassment and oppression. Due to the general language of Section 165, police can first search your house on a whim and subsequently validate such search retrospectively if the Station In-Charge backs up the search.