By Apurva Rathee, Advocate

Introduction:

     The right secured under clause 2 of Article 20 of the Constitution of India and Section 300 of the Criminal Procedure Code, 1973 is grounded on the ancient maxim “nemo debet bis vexari prouna eteadem causa” i.e., a man shall not be brought into danger for one and the same offence more than once or that he shall not be punished or put in jeopardy for the same offence more than once. If a person is charged again for the same offence in English Court, he can plead as a complete defence, his former acquittal or conviction, or as it is technically expressed, take the plea of autrefois acquit (formerly acquitted) or autrefois convict (formerly convicted).[1]

Objectives of the Principle of Double Jeopardy:

     The principle of double jeopardy is one of the well known principles of criminal jurisprudence.[2] The main objectives of providing the protection against double jeopardy are:

  • To protect the accused from unnecessary harassment which would be caused to him while undergoing successive criminal proceedings where only one crime has been committed. Thus the basic principle is that no man’s life or liberty shall be twice put in jeopardy for the same set of facts.[3]
  • The Indian judicial system is already suffering from a heavy backlog. In such a situation it is important to put an end to litigation once it has reached its logical conclusion, i.e., acquittal or conviction.

Scope of Article 20(2) of the Constitution:

     Article 20(2) provides that “No person shall be prosecuted and punished for the same offence more than once.”

The fundamental conditions for the applicability of Art. 20(2) are that:

  • There must have been a previous prosecution,
  • The accused must have been punished at such prosecution,
  • The subsequent proceeding must also be one for the prosecution and punishment of the accused, and
  • Proceedings on both the occasions must in relation to the same offence.[4]

The essentials of Art. 20(2) can thus be discussed in detail under the following heads:

  1. The person must be accused of an offence.

     The word offence has to be taken in the sense in which it is used in the General Clauses Act, 1897 as meaning ‘an act or omission made punishable by any law for the time being in force’.[5]

  1. The person should have been prosecuted before a Court or a judicial tribunal.

     The term prosecution means initiation or starting of any proceedings, criminal in nature, before a court, or a judicial tribunal. It means that Art. 20(2) would have no application where the proceedings are held under any revenue authorities.[6]

     In Maqbool Hussain v. State of Bombay,[7] the appellant, a citizen of India, brought from a foreign country some gold without making a declaration. The Customs Authorities took action against him under Sec. 167 of the Sea Customs Act, 1878 and confiscated the gold. Subsequently, he was charged under Sec. 8 of the Foreign Exchange Regulation Act, 1947 and prosecution started against him under the said Act. A Constitution Bench of the Supreme Court held that the Sea Customs Authorities were not a court or a judicial tribunal and confiscation of gold be them did not constitute a judgment. Thus the plea of double jeopardy could not be maintained.

     In S.A. Venkataraman v. Union of India,[8] the appellant, a government servant, was charged with committing corruption. An inquiry was held against him under the Public Servants (Inquiries) Act, 1850. As a result of the report of the Enquiry Commissioner, he was dismissed from service. There after he was prosecuted before the court for having committed offences under Secs. 161 and 165 of the Indian Penal Code, 1860 and Sec. 5(2) of the Prevention of Corruption Act, 1947. The Supreme Court Held that the proceeding taken before the Enquiry Commissioner did not amount to be a prosecution for an offence. Therefore, protection of Art 20(2) could not be availed by the accused.

     Gajendragadkar, J. has stated the protection under Art. 20(2) as follows: “The constitutional right guaranteed by Art. 20(2) against double jeopardy can be successfully be invoked only when the prior proceedings on which reliance is placed are of a criminal nature instituted or continued before a court of law or a tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.”[9]

     In the recent case of Suba Singh & Anr. v. Davinder Kaur & Anr.,[10] the accused was convicted and sentenced with imprisonment and fine under Sec. 304 IPC. The widow and minor daughter of the deceased claimed compensation as damages from defendants for causing the death of the deceased by their wrongful act. The accused claimed protection against double jeopardy under Art. 20(2) but the Supreme Court held that “it is elementary that an action for civil damages is not prosecution and a decree of damages is not punishment. The rule of double jeopardy, therefore, has no application to this case”.

  1. The person must have been punished after his prosecution before a Court or judicial tribunal.

     The protection against double jeopardy under this article would be applicable only if the accused has been not only prosecuted but also punished after such prosecution. Therefore, if there is no punishment for the offence as a result of the prosecution this article will have no application.[11]

     The words “prosecuted and punished” are not to be taken distributively so as to mean prosecuted or punished. Both the factors must co-exist.[12]

  1. The person must be prosecuted for the second time before a Court or a judicial tribunal.

     Art. 20(2) would have no application where the person is prosecuted and punished for the second time, but the subsequent proceedings is merely the continuance of the previous proceeding, as is the case of an appeal.[13]

  1. The offence must be the same in both the proceedings.

     Further, Art. 20(2) can operate as a bar only when the second prosecution and punishment is for the identical offence for which the person concerned has already been prosecuted and punished earlier. The same offence means an offence whose ingredients are the same. If the offences are distinct, there is no question as to the rule of double jeopardy being applicable. If one and same act of a person constitutes two different offences, then the punishment for one offence does not bar the prosecution and punishment for the other offence.[14]

     The Supreme Court has explained the legal position in the case of State of Bombay v. Apte,[15] “To operate as a bar the second prosecution and the consequential punishment there under, must be for the ‘same offence’. The crucial requirement therefore for attracting the article is that the offences are the same, i.e., they are identical. If however the two offences are distinct, then notwithstanding that the allegations of facts in the two complaints might be substantially similar, the benefit of the ban cannot be invoked.”

     In Apte’s case, a person was convicted under Sec. 409 IPC for criminal breach of trust. His later prosecution on the same facts under Sec. 105 of the Insurance Act would not be barred under Art. 20(2) because the ingredients of the two offences were different.[16]

Scope of Section 300 Cr.P.C.:

Analysis of the Section

Section 300 may be divided into following parts:

  • Sub-section (1) makes a provision for autrefois convict and autrefois acquit.
  • Other sub-sections provide exceptions to the general provision given in sub-section (1).

     In those sub-sections provisions are made for subsequent trial of a person, once tried for the offence on the same facts, or for the same offences in the same transaction. This section embodies the whole law in so far it expressly says where a second trial is barred and where a second trial is permissible. Principle laid down in Sec.300 is exhaustive on the point and it cannot be stretched any further.[17]

When can the Plea be raised

     This section simply lays down the rule on which a plea of autrefois acquit or convict is founded; and it would seem that the rule could be invoked by an accused person at any stage of the proceedings. A plea under this section could be entertained by the Supreme Court, even if the same plea taken by accused in another case arising out of the same matter had been rejected by the high court and had not been appealed against.

     The question whether a particular trial is barred by reason of previous prosecution ending in conviction or acquittal is a question to be determined on the facts and circumstances of a particular case.[18]

Conditions for Application of Section 300(1)

The conditions for the application of Sec. 300(1) are:

  • That he (the accused person) had previously been tried by a Court for an offence.
  • That such Court was competent to try that offence.
  • That he was either convicted or acquitted of that offence, at the former trial.
  • That such conviction or acquittal still remains in force when a subsequent proceeding has been brought against him.
  • That at the subsequent proceeding he is being tried again, (i) for the same offence; or (ii) on the same facts for any other offence for which a different charge might have been made under Sec. 221(1)-(2).[19]

Taking each of the above conditions in detail one by one.

  1. That he (the accused person) had previously been tried by a Court for an offence.

  • Accused– First and foremost, this protection can be availed only by the accused. The term accused has not been defined in Cr.P.C. but in the case of P. Sharma v. Satish Chandra,[20] a 7- Judge Bench gave a judgment which was later over-ruled but the definition of accused that was given in this case was upheld. Accused was defined in this judgment as “A person against whom a formal allegation of an offence is made which in normal circumstances will lead to his prosecution.”
  • Trial– The essential attributes of trial can be stated as follows:
  • It must be judicial proceeding where evidence maybe legally taken on oath.[21]
  • These proceedings must be carried out by a court of competent jurisdiction after examining and determining the criminal matter according to law.
  • It must result either in acquittal or conviction of accused.
  • Another essential factor is that the trial must be fair.

Trial has not been defined in Cr.P.C. But the four stages of trial can be listed as follows:

  • Opening of the case and framing of charges,
  • Prosecution evidence and defense evidence, although defense evidence is not a mandatory stage,
  • Judgment i.e., order of acquittal or conviction,
  • Post-conviction stage.

     For the purpose of this protection we are not concerned with the post conviction stage. With regard to the meaning and scope of the word tried in Sec. 300(1) there are two views. One view is that the accused must be present in the court on being summoned, before it can be said that the trial has commenced; and the other is that once the court has taken cognizance of a complaint or a criminal case and has ordered issue of process for the accused to appear, it has taken steps towards the trial and what it has done is proceedings in the nature of a trial. The latter view accords more with the explanation to Sec.300 because if it was the intention of the legislature to exclude acquittals under Sec. 256 and Sec. 257 (such acquittals are possible under the sections even before the accused makes his appearance in obedience to summons) from the purview of sec. 300, that could have been as specifically provided as the discharge of the accused or the dismissal of a complaint as has been done in that explanation.[22]

     Thus where the trial begins in summons case and warrant case is a controversial area. In warrant case, the trial begins with the framing of charges. In summons cases there can be four possibilities, (i) when the magistrate takes cognizance, (ii) when process is issued, (iii) when accused appears, (iv) when the allegation are explained to the accused.

  1. That such Court was competent to try that offence.

There are three essential attributes to this condition:

  • Meaning of Court– Section 19 of I.P.C., 1860 defines judge as any person who is empowered by law to give a definitive judgment.[23] Section 20 of I.P.C. states that, “The words “Court of Justice” denote a judge who is empowered by law to act judicially alone, or a body of judges, which is empowered by law to act judicially as a body, when such judge or body of judges is acting judicially.”
  • Competent JurisdictionThe whole basis of Sec. 300(1) is that the first trial should have been before a court of competent jurisdiction to hear and determine the case and to record a verdict of conviction or acquittal.[24] It has been repeatedly held by the Supreme Court that an adjudication before a collector of customs is neither a prosecution nor the collector of customs a court.[25] However, the expression ‘competent court’ to try an offence should not be narrowly interpreted as to involve merely the consideration of the status or the character of the court, but in determining the competence it must also be considered whether the court though otherwise qualified to try the case, could not have done so because certain conditions precedent for the exercise of the jurisdiction (e.g. previous sanction to prosecute) had not been fulfilled.[26] Further, in order to apply the principle of autrefois acquit, it is not enough that the court which acquitted the accused in the first trial had in fact the jurisdiction or competence to try the case. It is also necessary that the court believed that it had such jurisdiction and competence.[27]

     The word ‘jurisdiction’ refers not only to the character and status of the tribunal, but also includes local or territorial jurisdiction as laid down in Secs. 177-183 and 188. Therefore, previous acquittal of an offence by a court having no local jurisdiction to try the offence is not a bar to the subsequent trial by a competent court.[28]

  • It should result in conviction or acquittal.
  1. That he was either convicted or acquitted of that offence, at the former trial.

     The accused shall be tried by a court of law and he should be either convicted or acquitted. If the trial does not end in acquittal or conviction, it is merely an inquiry and consequently the protection under this section cannot be claimed.

  • If an order of acquittal has been passed under any of the provisions of the Code, Sec. 300(1) will bar fresh proceedings, whatever be the grounds on which such acquittal has been made.
  • There is no acquittal where the appellate court sets aside a conviction but remands the case for trial.
  • Nor can Sec. 300(1) be invoked where the order of acquittal is nullity, having been made by a court which lacked jurisdiction, or where the order was made arbitrarily without going into trial or considering the merits. Such an order would not bar a fresh trial on the same facts.[29]

There are certain cases of statutory or technical acquittal which also bar any subsequent trial. These are:

  • Dismissal of a complaint in summons cases

Dismissal of a complaint under 256 of the Code in the absence of the complainant is a final order of acquittal which amounts to trial and operates as bar to a subsequent trial. But in order to attract the provision of Sec.256, the summons should have been issued for the appearance of the accused and the date on which the complaint was dismissed must be a date fixed for the appearance of the accused or any other subsequent date of hearing.[30]

     The Magistrate must exercise his powers under this section reasonably. The accused must be acquitted when the complainant fails to appear without any just cause.[31]

     In case of death of the complainant the accused may be acquitted or the hearing may be adjourned. It was held in Muniruddin Akand v. Kasamuddin Munshi,[32] that if brother of the complainant who is equally interested desires to carry on the case after the death of the complainant, at the stage of argument, he should be allowed to do so.

     It is also worth mentioning Sec. 249[33] here. This section deals with non-appearance in warrant cases. An order of discharge for non-appearance of complainant under Sec. 249 is not a final order, therefore, a fresh complaint maybe filed after such order.

     The intention of the Legislature for making this provision is to avoid dilatory tactics on the part of the complainant by taking dates. These sections are not meant to wreck hardships on the complaint.[34]

  • Withdrawal of a complaint under Sec. 257

This section applies to summons cases instituted upon complaint. It applies to cases instituted otherwise than upon a police complaint. The complainant may be permitted to withdraw his complaint at any time before a final order is passed in any case under this chapter. In order that the permission to withdraw complaint may be granted, the complainant must satisfy the Magistrate that there are sufficient grounds for granting such permission. If such permission is granted then acquittal order is granted to the accused.[35] In Thathapadi Venkatalakshmi v. State of A.P.,[36] wife filed a report before the police against her husband alleging offence under Sec. 498-A of the Penal Code. A charge-sheet was filed by police which formed the basis for court to take cognizance of offence. It was held that wife cannot be permitted to withdraw charge-sheet filed by the police.

  • Compounding of offences under Sec. 320

There are some offences which affect the private individuals alone and do not injure the society. Therefore, those offences which affect the individuals alone and are not of a grave nature can be compounded by consent of the parties under Sec. 320(1). Since offences mentioned in the table to sub-section (1) relate exclusively to the personality of the individual, the law permits the person against whom the offence has been committed to settle the difference by compromise. This is known as compounding of the offence. Offences mentioned in table to the sub-section (1) can be compounded even without the permission of the court. Under sub-section (2) permission of Court is necessary for compounding a case even by consent of the parties because the offences mentioned under this sub-section are graver ones. At the same time there are certain other offences which cannot be compounded under any circumstances whatsoever.[37] Compounding amounts to a technical acquittal and a subsequent trial is therefore barred.

  • Withdrawal from prosecution under Sec. 321

Withdrawal from prosecution before a charge is framed is no bar to a subsequent trial for the same offence but withdrawal from the prosecution after a charge has been framed amounts to an acquittal and bars a fresh trial.[38]

  • Proceedings stopped under Sec. 258

In section 258 it is provided that when the proceedings are stopped after the evidence of principle witnesses has been recorded, the Magistrate shall pronounce the judgment of acquittal and in any other case, release the accused. The release has the same effect as discharge. Consequently, under the present law if the proceeding has been stopped after the recording of the statement of principle witnesses, the second trial would be barred.[39]

  1. That such conviction or acquittal still remains in force when a subsequent proceeding has been brought against him.

     The bar on a fresh trial under this section applies only where the previous conviction or acquittal is in force.[40] Till the order of acquittal or conviction stands there cannot be a second trial. So that a previous trial may act as a bar to the subsequent trial, the conviction or acquittal must not have been set aside. An acquittal may be set aside in an appeal and a re-trial may be ordered. Similarly, a conviction can also be set aside and a re-trial can be ordered. In both these case, the acquittal or conviction is not in force and therefore, the second trial will not be barred.[41]

  1. That at the subsequent proceeding he is being tried again, (i) for the same offence; or (ii) on the same facts for any other offence for which a different charge might have been made under Sec. 221(1)-(2).

     The test is whether the former offence and the offence now charged have the same ingredients in the sense that the facts constituting the one are sufficient to justify the second prosecution.[42]

  • What Sec. 300(1) bars is a fresh criminal trial for the same offence or any other offence founded on the same facts. It would not prevent a civil action brought on the same facts. Thus, an acquittal from the offence of theft would not prevent a civil action for the return of the things stolen.[43] The crucial requirement for attracting the basic rule is that the offences are the same, i.e. they should be identical. It is therefore necessary to analyze and compare not the allegations in the two complaints but the ingredients of the two offences and see whether their identity is made out. Sec. 300 bars the trial for the same offence and not for different offences which may result from the commission or omission of the same set of acts. Where the Legislature provides that on the same facts proceedings could be taken under two different sections and the penalties provided in those sections are also different, it is obviously intended to treat the two decisions as distinct. In such a case section 300 does not apply.[44]
  • Even though the offence in the second trial is not the same offence, still the second trial will be barred if it is based on the same facts for any other offence for which a different charge from the one made against the accused might have been made under Sec. 221(1) or for which he might have been convicted under Sec. 221(2).
  • Further, such evidence cannot be objected to as evidence in another case, criminal or civil, no doubt its weight would be diminished. Where in a trial for murder and robbery, the accused is convicted of murder but acquitted of robbery and an appeal is preferred from the conviction for murder, the court is entitled to accept the evidence which has been disbelieved by the trial court on the charge of robbery as corroborative evidence of murder.
  • The word ‘again’ makes it clear that the section has no application unless there are two trials or proceedings. It has no application where an accused is charged with several offences which are not identical.[45]
  • Thus the two tests for determining whether the offence is the same offence or not are-
  • If the facts that are proved in the first prosecution are to be proved in the second prosecution.
  • The elements are the same. For example, A is convicted for murder of X. Later on it was discovered that X was also kidnapped. In this case, A can be prosecuted again for the offence of kidnapping because murder and kidnapping are distinct offences and therefore different charges would be framed.

Section 300(2):

     Section 220(1) provides that if in one transaction many offences are committed by the same person, he may be charged with (separately) and tried at one trial for every such offence.[46]

     Where a person has been convicted or acquitted of any offence and a separate charge for another offence could have been made but was not made against him in the former trial, he should not be liable to be prosecuted again for the other offence as it would lead to harassment. To provide a check against such abuse Sec. 300(2) makes it obligatory to obtain the consent of the State Government before a new prosecution is launched against any person for any distinct offence for which a separate charge might have been made against him at the former trial under Sec. 220(1).

     The provision envisages a wholesome protection to the accused person. Consent of the state government is expected to be given only after due consideration of all the facts and circumstances of the case and with the intention of promotion of justice.[47]

     For example, where certain persons, after beating the inmates of a house, carried off a woman, and on the first trial they were charged under Sec.325 and 452 IPC for house trespass and grievous hurt and convicted, it was held that such conviction did not bar a subsequent trial for the offence of abduction which had been committed in the course of the same transaction. The case falls under Sec. 220(1) and therefore under Sec. 300(2).[48]

Section 300(3):

     This sub-section makes provision for a subsequent trial in cases where an act is in itself an offence but together with the consequences that follow it becomes a graver offence. ‘A’ shoots at ‘B’. He commits an offence of attempt to murder. He is tried under Sec.307 IPC and acquitted. B dies as consequence of shooting, now the offence of murder is committed. In this case a subsequent trial for the offence of murder is only possible when either the consequences had not taken place at the time of the previous trial or it had happened but it was not known to the Court trying the first case. The consequences should be the direct consequences.[49]

Section 300(4):

     The words ‘was not competent to try’ means ‘had no jurisdiction to try’. Jurisdiction included local jurisdiction, so if the previous court had no jurisdiction to try the subsequent offence, it was a court not competent to try the offence within the meaning of this clause. If a person has been acquitted or convicted of an offence, but the same facts disclose another offence which could not be tried by the same Magistrate who tried the first offence, then the previous acquittal or conviction is no bar to further proceedings for the latter offence.[50]  For example, 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, dacoity on the same facts.[51]

     Where the same acts which were committed by the accused constituted several offences, but the trying magistrate could not charge the accused of the major offences because of his want of competence to try such offences, a conviction or acquittal for the minor offence at such trial will not bar a subsequent trial by a competent court of the major charges.[52]

Section 300(5):

     Sec. 258, as discussed earlier, has provided that order of stoppage of proceedings will operate- (a) as an order of acquittal if it has been made after examination of the principle witnesses, and (b) as an order of discharge, in other cases.

     So far as the order of acquittal is concerned, it is evident that it will bar fresh prosecution for the same offence under Sec. 300(1). The implied order of discharge under the latter part of Sec. 258 would not attract Sec. 300(1). Hence, in order to prevent harassment of the accused by an unnecessary fresh proceeding, sub-section (5) has been inserted, requiring the consent of the Magistrate who passed the order of stoppage or of a superior Court, to bring a fresh proceeding.[53]

Section 300(6):

     Sub-section (6) makes it clear that the provisions of Sec. 26 of the General Clauses Act have not been affected by the provisions of Sec. 300 Cr.P.C. Sec. 26 of the General Clauses Act provides that when an act or omission constitutes an offence under two or more enactments, the offender shall be liable to be prosecuted and punished under either any of those enactments but he shall not be liable to be punished twice for the same offence. Under this section it is open and permissible for the prosecution to choose to prosecute accused under provisions of one of the Acts.

     This section also provides that nothing in this section shall effect the proviso of Sec.188 of the Code. The proviso of Sec. 188 makes it compulsory to take the sanction of central government prior to the prosecution for offences committed out of India.[54]

Explanation to Section 300:

     The explanation to Sec. 300 states that a dismissal of a complaint or discharge of the accused is not an acquittal for the purposes of this section. If the Legislature had intended that the dismissal of the complaint or the discharge of the accused is to be a bar to fresh proceedings on the same facts unless the order of dismissal or discharge is set aside by a higher court, the legislature should have said so either explicitly or by omitting the explanation altogether. The effect of this explanation is that a fresh trial is barred only in cases of acquittal or conviction. Fresh proceedings against a person discharged are permitted by law.[55]

Comparison between Section 300 Cr.P.C. and Article 20(2) of the Constitution:

     Art. 20(2) of the Constitution clearly uses the word ‘and’ in a conjunctive sense and it is only where the accused has been both prosecuted and punished for the same offence that a second trial is barred. Even though the right against double jeopardy under Art. 20 (2) of the Constitution is a fundamental right and under Section 300 Cr.P.C. is a statutory right, the ambit of Article 20 (2) is smaller than that of Section 300. The intention of the founding fathers appears to have been not to disturb the existing law which is to be found in Sec. 300 of the Code of Criminal Procedure relating to the extent of protection against double jeopardy in criminal law of this country.

     But there are certain differences between Sec. 300 and Art. 20(2). They are-

  • Section 300 is more comprehensive in its scope that Art. 20(2). Art. 20(2) bars the re-trial of a person for the same offence when he has been convicted and sentenced for the same offence whereas Section 300(1) specially incorporates the principle which gives effect to the pleas of autrefois acquit as well as autrefois convict.[56]
  • Article 20(2) is only applicable to same offences but the protection under Sec. 300 is also applicable to cognate offences for which charge could have been framed in the previous trial under Sec. 220(1).
  • In the landmark judgment of State of Tamil Nadu v. Nalini[57] also it has been held that though Art. 20(2) of the Constitution of India embodies a protection against second trial after a conviction of the same offence, the ambit of the sub-article is narrower than the protection afforded by Sec. 300 if the Criminal Procedure Code.[58]300 has further widened the protective wings by debarring a second trial against the same accused on the same facts even for a different offence if a different charge against him for such offence could have been made under Sec. 221(1) or he could have been convicted for such other offence under Sec. 221(2) of the Code.[59]
  • In the of Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao[60] the Supreme Court held that there is difference between the language used in Art. 20(2) and Sec. 300. Sec. 300 being wider in ambit states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts. Hence, in this case prosecution under Sec. 420 IPC was barred by Sec. 300(1) as the appellant had already been convicted under Sec. 138 of the Negotiable Instruments Act, 1881.

 

[1] Shukla, V.N., Constitution of India, 10th Ed., Eastern Book Co., Lucknow, 2001, pp. 155-56

[2] Kumar, Narender, Constitutional Law of India, 7th Ed., Allahabad Law Agency, Faridabad, 2008, p.282

[3] Ashutosh, Dr., Rights of Accused, Universal Law Publishing Co., Delhi, 2009, p.33

[4] Manohar & Chitaley, The A.I.R. Manual (Civil and Criminal), Vol. 10, 6th Ed., The All India Reporter Pvt. Ltd., Congress Nagar, Nagpur, p.243

[5] Shukla, supra note 1, p. 156

[6] Kumar, supra note 2, p. 283

[7] AIR 1953 SC 325

[8] AIR 1954 SC 375

[9] Shukla, supra note 1, p. 157

[10] AIR 2011 SC 3163

[11] Kumar, supra note 2, p. 284

[12] Manohar & Chitaley, supra note 4, p. 243

[13] Kumar, supra note 2, p. 285

[14] Jain, M.P., Indian Constitution Law, 5th Ed., Wadhwa and Co. Nagpur, New Delhi, 2005, p. 1060

[15] AIR 1961 SC 1

[16] Jain, supra note 14, p.1061

[17] Lal, Batuk, The Code of Criminal Procedure, 2nd Ed., Central Law Agency, Allahabad, p. 454

[18] Mitra, B.B., Code of Criminal Procedure, 1973, Vol. 2, 21st Ed., Kamal Law House, Kolkata, 2011, p. 1566

[19] Basu, D.D., Criminal Procedure Code, 1973, Vol.2, 4th Ed., LexisNexis Butterworths Wadhwa, Nagpur, 2010, p. 1445

[20] AIR 1954 SC 300

[21] Sec. 2(i) of Cr.P.C. – “Judicial proceeding” includes any proceeding in the course of which evidence is or may be legally taken on oath.

[22] Kelkar, R.V., Criminal Procedure, 5th Ed., Eastern Book Company, Lucknow, 2008, p. 500

[23] Sec. 19, I.P.C.“The word “Judge” denotes not only every person who is officially designated as a Judge, but also every person who is empowered by law to give, in any legal proceeding, civil or criminal, a definitive judgment, or a judgment which, if not appealed against, would be definitive, or a judgment which, if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgment.”

[24] Mitra, supra note 18, p. 1571

[25] Maqbool Hussain v. State of Bombay, AIR 1953 SC 325

[26] State v. Birda, (1966) 1 Cri. L.J. 166, 168

[27] Kelkar, supra note 22, pp.500-501

[28] Mitra, supra note 18, p. 1572

[29] Basu, supra note 19, p. 1448

[30] Lal, supra note 17, p. 455

[31] Misra, S.N., The Code of Criminal Procedure, 1973, 17th Ed., Central Law Publications, Allahabad, 2010, p.411

[32] (1947) 1 Cal 99

[33] Sec. 249, Cr.P.C. “When the proceedings have been instituted upon complaint and any day fixed for the hearing of the case, the complainant is absent and the offence lawfully compounded or is not a cognizable offence, the Magistrate may in his discretion, notwithstanding anything herein before contained, at any time before the time has been framed, discharge the accused.”

[34] Lal, supra note 17, p. 405

[35] Misra, supra note 31, p. 413

[36] 1991 Cri.L.J. 749 (A.P.)

[37] Misra, supra note 31, p.488

[38] Lal, supra note 17, p.455

[39] Ibid., p.456

[40] Manohar & Chitaley, The A.I.R. Manual (Civil and Criminal), Vol. 18, 6th Ed., The All India Reporter Pvt. Ltd., Congress Nagar, Nagpur, p. 197

[41] Lal, supra note 17, p.456

[42] Ratanlal & Dhirajlal, The Code of Criminal Procedure, 19th Ed., LexisNexis Butterworths Wadhwa, Nagpur, 2010, p. 1169

[43] Basu, supra note 19, p. 1448

[44] Kelkar, supra note 22, p.501

[45] Basu, supra note 19, p. 1448-49

[46] Lal, supra note 17, p.456

[47] Kelkar, supra note 22, p.502

[48] Mitra, supra note 18, p. 1576

[49] Lal, supra note 17, p.457

[50] Mitra, supra note 18, p. 1579

[51] Illustration (e) to Sec.300 Cr.P.C.

[52] Basu, supra note 19, p. 1451

[53] Ibid., p.1452

[54] Lal, supra note 17, p.458-59

[55] Mitra, supra note 18, p. 1580

[56] Lal, supra note 17, p.459-60

[57] AIR 1999 SC 2640

[58] Ibid., para 240

[59] Ibid., para 241

[60] AIR 2011 SC 641

*Image Source: https://queerty-prodweb.s3.amazonaws.com/wp/docs/2009/05/gavels.jpg

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