Double Jeopardy or not ?

If any enactment prescribes penalties for any act then it would not be apposite to infer that there is a bar for prosecution for the same act under any other penal provision, unless such a bar for prosecution has been expressly provided in that context.

Recently, in the matter of The State of Maharashtra and Anr. v. Sayyed Hassan Sayyad Subhan & Ors. (Copy of Judgement )the Hon’ble Supreme Court on 20.09.2018 expressed that a perusal of the provisions of the Food and Safety Standards Act, 2006 makes it clear that there is no bar for prosecution under the IPC merely because the provisions in the Food and Safety Standards Act, 2006 prescribe penalties. The Section 26 of the General Clauses Act, 1897, was referred to, which reads as follows:

“Provisions as to offences punishable under two or more enactments – 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 ofthose enactments, but shall not be liable to be punished twice for the same offence.”

The Hon’ble Supreme Court at different times has made the following observations with respect to punishing a person under two different enactments when the same act of such a person attracts punishments under various enactments:

  • S Baliah v. T.S Rengachari (1969) 3 SCR 65

There is no bar to a trial or conviction of an offender under two different enactments, but the bar is only to the punishment of the offender twice for the offence. Where an act or an omission constitutes an offence under two enactments, the offender may be prosecuted and punished under either or both enactments but shall not be liable to be punished twice for the same offence.  (Para 10)

  • State of Rajasthan v. Hat Singh (2003) 2 SCC 152

Article 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same offence more than once. To attract applicability of Article 20(2) there must be a second prosecution and punishment for the same offence for which the accused has been prosecuted and punished previously. A subsequent trial or a prosecution and punishment are not barred if the ingredients of the two offences are distinct. (Para 8)

If the offences are distinct, there is no question of the rule as to double jeopardy being extended and applied. (Para 15)

  • State of Bihar v. Murad Ali Khan (1988) 4 SCC 655

If there are two distinct and separate offences with different ingredients under two different enactments. a double punishment is not barred. (Para 8)

The same set of facts, in conceivable cases. can constitute offences under two different laws. An act or an omission can amount to and constitute an offence under the IPC and at the same time constitute an offence under any other law. (Para 8)

-Tushar Kaushik

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