SECTION 403 Cr. P.C is based on the ancient maxim
"NEMO DEBTS BIS UEXARI PROEADEM CAUSA"
(no person should be twice disturbed for the same cause).
The same principle AUTRE FOIS ACQUIT (formerly acquitted) and AUTRE FOIS CONVICT (formerly convicted) is prevailing in the common law which means that no one should be punished or put in peril twice for the same matter.
According to the Oxford dictionary
"trial for the same offence"
Following are the relevant provision of Cr. P.C regarding the concerned topic.
- Section 403 Cr.p.c.
- article 13(A) Constitution of Pakistan, 1973
- section 26 of General clauses act.
- Section 11 of c.p.c
RULE OF DOUBLE JEOPARDY U/SEC
Section 403 Cr. P.C contemplates a situation where a person who has once been tried by a court of competent jurisdiction and acquitted or convicted by such cannot be tried again for the same offence nor any other offence based on similar facts
PLJ 1978 SC 221
It was held that where the prosecution finally concluded ended either in acquittal or conviction that a fresh prosecution for the same would be barred.
ESSENTIALS TO ATTRACTION SEC 403.
BEFORE SEC 403 CAN BE INVOKED THE FOLLOWING CONDITIONS HAVE TO BE SATISFIED.
It is necessary for the application of sec 403 that there must be a previously instituted trial apart from the one in question. It means that the proceedings must have commenced in the court against the person in question against whom the court has taken cognizance of the offence and issued process.
The offender and set of the facts relating to the offence must be the same in both trials. Same offences mean the same act or omission made punishable under the same provision of law.
The protection contained in subsection 1 of section 403 extends to an offense, for which a different charge might have been made on the same facts at a previous trial u/sec 23 and also in respect of an offense for which he might have been convicted at the previous trial u/sec 273 Cr. P.C
a court of competent jurisdiction is a court that has legal authority under the law of the land to determine the case on merits that is brought before it. The bar of fresh trial u/sec 403 will apply only where the previous conviction or acquittal has been by a court of competent jurisdiction.
The PREVIOUS TRIAL ENDS AT CONVICTION OR ACQUITTAL
To attract sec 403 it is necessary that the previous trial must ends either order of conviction or acquittal.
Conviction means a conviction for a criminal offense an offence that may be punishable with a fine or deprivation of liberty.
The acquittal means a verdict of the jury or final judgment of the court that the prisoner goes thereof without day.
The bar of fresh trial applies only where the previous conviction or acquittal is in force.
VIOLATION OF TWO LAWS
Accused of violating two laws for the same offense cannot be tried twice. The second trial after conviction under one act is forbidden by article 13 of the constitution and sec 26 of the general clauses act and sec 403 of Cr. P.C
the second trial may be instituted against the accused in the following case.
A person acquitted or convicted for any offense may be afterward tried for any distinct offense for which a separate charge might have been made against him on the form trial u/sec 235(1).
The test to determine whether offenses charged at two trials are distinct or not is that.
- Whether separate sentence could be passed if the offenses were charged at the same trial and
- Whether the evidence necessary to prove the two offences is the same or distinct.
A person tried again for any other offense constituted by the same acts. When the consequences had not happened were not known to the court to have happened at the time when the accused was convicted.
A is tried for causing grievous hurt to b and convicted B afterward dies A may be tried again for culpable homicide.
A person may be tried again for any other offense constituted by the same acts but for which he was not tried for want of jurisdiction by the previous court.
It is a settled principle of law that no person will be tried for an offense on the same set of facts on which he has already been acquitted or convicted.
Section 403 is exhaustive on the subject of the effect of previous convictions or acquittals. The scope of section 403 is restricted to criminal proceedings and not to civil proceedings and departmental inquiries.