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Manav Kalia (Arguing my own cases..)     11 December 2011

Can dv and 498a run simultaneously?

Can DV and 498a run at the same time, if cause of action in one is a sub set of the other? If allowed to run concurrently, then is it not a violation of principle of double jeopardy, under article 20 of the constitution? Please clarify.. Thanks..


 16 Replies

Legal Fighter (Advocate)     11 December 2011

yes. reliefs are different in both the cases. in DV, relief is of civil nature whereas in 498A, its criminal so there is no bar.

1 Like

K.P.Satish Kumar (Advocate)     11 December 2011

No double jeopardy will cover in this matter.

1 Like

S.B.adil rahman (Legal Consultant )     11 December 2011

Yes, there is no problem. DV case is infact a civil type of case dealt by the Magistrate of criminal courts in which the rights of a woman are protected. On the other hand 498A IPC is a pure criminal offence in which punishment is awarded to the offenders. So  both the cases are of different nature and have no bearing upon each other. However, the magistratewhile  hearing a DV case can also add section 498A IPC with the DV Act also in order to inflict the punishment upon the offenders. The purpose of DV Act is to provide protection to the helpless woman so that she is not ousted from the husband's house and also to grant financial support to her from the exchequer of the husband. But it is not so in section 498A IPC where punishment to the offenders is the only way out. There is nothing like financial relief to the affected woman under section 498A IPC.

Manav Kalia (Arguing my own cases..)     11 December 2011

Is DV not quasi criminal? Holds an imprisonment sentence of one year upon conviction? What does article 20(2) say?

Shantanu Wavhal (Worker)     11 December 2011

an evil woman with the weapon of law in hand can turn on all the disasters simultaneously.

Tajobsindia (Senior Partner )     11 December 2011

No. I differ to opinions given by ld. members above totally while touching the briefs primarily que. of Law before us. I will now place for debate before above ld. members of Bar Hon’ble SC has two different contradictory versions available for pleading as the case may be with reasoning;

 



Hon'ble SC Version 1:
There is no double jeopardy when conviction under two different laws which no. of times Hon’ble SC has affirmed as recently as in Re.:
The Institute of Chartered Accountants of India vs. Vimal Kumar Surana decision
. In my opinion there is no bar to the trial or conviction of the offender under both enactments but there is only a bar to the punishment of the offender twice for the same offence. In other words, the section provides that where an act or omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both the enactments but shall not be liable to be punished twice for the same offence. We accordingly reject the argument of the appellant on this aspect of the case
Reasoning on above placed version 1:



The fundamental right which is guaranteed in
Art. 20 (2) COI enunciates the principle of “autrefois convict” or “double jeopardy”. The roots of that principle are to be found in the well established rule of the common law of England “that where a person has been convicted of an offence by a court of competent jurisdiction the conviction is a bar to all further criminal proceedings for the same offence”. (Per Charles, J. in Reg v. Miles). To the same effect is the ancient maxim “Nemo bis debet puniri pro uno delicto”, that is to say that no one ought to be twice punished for one offence or as it is sometimes written “pro eadem causa”, that is, for the same cause.



This is the principle on which the party pursued has available to him the plea of “autrefois convict” or “autrefois acquit”. “The plea of ‘autrefois convict’ or ‘autrefois acquit’ avers that the defendant has been previously convicted or acquitted on a charge for the same offence as that in respect of which he is arraigned.... The question for the jury on the issue is whether the defendant has previously been in jeopardy in respect of the charge on which he is arraigned, for the rule of law is that a person must not be put in peril twice for the same offence. 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 a conviction of the other, not that the facts relied on by the Crown are the same in the two trials. A plea of ‘autrefois acquit’ is not proved unless it is shown that the verdict of acquittal of the previous charge necessarily involves an acquittal of the latter.” (Vide Halsbury’s Laws of England, Hailsham Edition, Vol. 9, pp. 152 and 153, para 212).



This principle found recognition in
S. 26 of the General Clauses Act, 1897,—


`Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted and punished under either or any of those enactments but shall not be liable to be punished twice for the same offence,’  and also in S. 403 (1) of the CrPC, 1898,

 

 

`A person who has 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 charge from the one made against him might have been made under S. 236, or for which he might have been convicted under S. 237’.”

 

 

Hon'ble SC Version 2: Giving the law and protection against double jeopardy a different dimension altogether, invoking the provisions of the Code of Criminal Procedure, the Supreme Court recently has declared that a person cannot be convicted even for a different offence under a different statute if the facts leading to the conviction under both the statutes are the same. While the decision does not discuss this aspect and is in considerable contrast from the earlier enunciation of law, but what has been mentioned above in Version 1 as no double jeopardy when conviction under two different laws about the Supreme Court decisions itself that the law of double jeopardy protection is not available if the conviction is under different statutes. So bhai merey when SC can give two versions on same doctrine then why can’t you take Hanuman’s leap to apply the same in your case!

Reasoning on version 2:


 

Holding that the protection against double jeopardy available under the Code of Criminal Procedure to an accused is much wider than the protection available under the Constitution of India, the Supreme Court in a recent decision [Re.: Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, AIR 2011 SC 641] explaining this proposition of law inter alia observed as under;



It may be noticed that there is a difference between the language used in Art. 20 (2) of the Constitution of India and S. 300 (1) of Cr.P.C.. Art. 20 (2) COI states:

“no person shall be prosecuted and punished for the same offence more than once.”

On the other hand, S. 300 (1) of Cr.P.C. States:

 

 

“300. Person once convicted or acquitted not to be tried for same office-

(1) 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 charge from the one made against him might have been made under subsection (1) of section 221 or for which he might have been convicted under sub-section (2) thereof.”



Thus, it can be seen that S. 300(1) of Cr.P.C. is wider than Art. 20 (2) of the Constitution. While, Art. 20 (2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once', S. 300(1) of Cr.P.C. 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 the problem here is first taking Hanuman’s leap via first convincing a Advocate to come up with sound pleading on principles of double jeopardy cherry picking either one of the above reasoned version placed here for debates and it is nobody’s case here that you are party-in-person so there are chances of going away gyan under the carpet unless heavily debated by gyanis here! Visual bar here in your enquiry and reading down your several posts till date is that there emerges a
caveat given to understand cross sections of Acts / Codes / Penal provisions understanding cometh under Hanumanic pleadings by a party –in-person.


However I wish you all the very best if these two versions from Apex Court motivates your cause. 

6 Like
1 Like

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     11 December 2011

Tejobsindia has perfectly pleaded his case with full labour. I pay special compliments to him.

1 Like

Jolly James 9447287658 (Advocate)     11 December 2011

26. Relief in other suits and legal proceedings.

(1) Any relief available under Sections 18, 19, 20, 21 and 22 may also be sought in any legal proceeding, before a civil court, family court or a criminal court, affecting the aggrieved person and the respondent whether such proceeding was initiated before or after the commencement of this Act.

(2) Any relief referred to in sub-section (1) may be sought for in addition to and along with any other relief that the aggrieved person may seek in such suit or legal proceeding before a civil or criminal court.

(3) In case any relief has been obtained by the aggrieved person in any proceedings other than a proceeding under this Act, she shall be bound to inform the Magistrate of the grant of such relief.

 

Dr J C Vashista (Lawyer)     11 December 2011

I agree with Tajobsindia to a limited extend (and appriciate his views/efforts) since the nature of both the cases i.e., u/s 498A IPC and relief (s) claimed under PWADV Act Section 19, 20, 21 & 22 are different which do not include cruelity against woman.

There is no double jeopardy as expliained hereinabove. 

The complainant has to disclose the facts before magistrate.

G. ARAVINTHAN (Legal Consultant / Solicitor)     12 December 2011

Good work by Tajobsindia

1 Like

N.K.Assumi (Advocate)     12 December 2011

Tajobsindia, has done a supreb works in this field. I would like to Congrats our Honble Union Minister  Renuka Choudhary for successfully piloting it in the Parliament this DVA Act with its application from 2006, having the characteristic  like Dr.Jekyll and Mr.Hyde. We should only note the memorable words of Karl Marx "Any enactment, which forcefully subjects a section of society to conduct and Serve the other section at its willful pleasure, would only enhance the level of oppression in the Society and leave incurable marks on the face of the most Democratic society" and DVA is that enactment of oppression capable of changing the acts to its needs and requirement.

A. A. JOSE (LAWYER; LEGAL ADVISER/CONSULTANT& TRAINER)     12 December 2011

While  Tajobsindia well articulated relevant issue, I am inclined to agree with the views expresssed by Dr.Maj.JC Vashista and other experts to the effect that the doctrine of double jeopardy  would not be applicable .

Shonee Kapoor (Legal Evangelist - TRIPAKSHA)     12 December 2011

When Tajobs speaks, no one dare say anything. :P

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

1 Like

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