Section 401(3) CrPC Safeguards A Person Who Has Already Been Acquitted By Trial Court From Being Convicted Of The Same Offence By High Court: Telangana High Court

The Appeal before the High Court arose from a judgment sentencing the appellant to life imprisonment for an offence punishable under section 302 of The Indian Penal Code, 1860 (IPC) and rigorous imprisonment for 6 months for the offence under section 379 of the IPC. The appellant was the second accused before the Trial Court.

The Division Bench of Justice Moushumi Bhattacharya and Justice B.R. Madhusudhan Rao said, “Even though the learned Single Judge directed the Trial Court to reconsider the matter with regard to the offences under sections 302 and 379 of the IPC, the judgment is replete with observations and findings against the appellant for having wrongly been acquitted of the charges under sections 302 and 379 of the IPC. These findings and observations impinge on the protection granted under section 401 (3) of the Cr.P.C to a person who has already been acquitted by the Trial Court, safeguarding him/her from being convicted of the same offence by the High Court.”

Advocate P. Krishna Prakash represented the Appellant while Additional Public Prosecutor M. Ramchandra Reddy represented the Respondent.

Factual Background

The appellant-second accused, along with the first accused, were earlier tried by the Principal Sessions Judge, Medak, in a Sessions Case for offences under sections 302 and 379 of the IPC. By a judgment dated July 16, 2012, the accused appellant was acquitted of both the charges under sections 302 and 379 of the I.P.C, but was convicted for the offence under section 411 I.P.C. for dishonestly receiving stolen property. The appellant was accordingly sentenced to undergo Rigorous Imprisonment for 3 years and to pay a fine of Rs 5,000.

The appellant preferred Criminal Appeal No.737 of 2012, which was heard by a Single Judge and by a judgment dated June 28, 2024, the matter was remanded to the Trial Court for deciding the matter afresh about the offences under sections 302 and 379 of the I.P.C. The appellant was directed to be put on notice. On remand, the Trial Court, by the impugned judgment, convicted the appellant and the first accused for the offences under sections 302 and 379 of the I.P.C. based on the same evidence which was led in 2012.

Reasoning

The Bench, at the outset, explained that the statutory embargo on a second trial of a person for the same offence, while the first conviction or acquittal remains in force, is one of the fundamental rights protected under Article 20(2) of the Constitution of India, which prohibits a person from being prosecuted and punished for the same offence more than once. The Constitutional guarantee in Article 20(2) finds echoes across the world. “The Fifth Amendment of the American Constitution enunciates the principle that no person shall be twice put in jeopardy of life or limb. The principle is also part of the Rule of English Law that a person must not be put in jeopardy twice for the same offence”, it further said.

Coming to the facts of the case, the Bench noted that the Single Judge remanded the matter to the Trial Court without setting aside the judgment dated July 16, 2012. Therefore, the appellant’s conviction and sentence, as imposed in the July 16 judgment, remained in force as of June 28, 2024 (the date of the judgment of the Single Judge) and continued to remain in force till the impugned judgment dated January 28, 2025. “The fact that the judgment dated 16.07.2012, which was the subject matter of Criminal Appeal No.737 of 2012, was not set aside and the matter was simply remanded to the Trial Court for reconsideration is germane for the purposes of section 300(1) of the Cr.P.C and section 337(1) of the BNSS”, it stated.

The Bench also mentioned, “Both sections 300(1) of the Cr.P.C and 337(1) of the BNSS prohibit a person from being tried twice for an offence where the person has either been convicted or acquitted, while such conviction/acquittal remains in force.”

It was explained that section 401(2) of the CrPC mandates that no order under section 401 shall be made to the prejudice of the accused unless the accused was given an opportunity of being heard, either personally or through a pleader, in his/her defence. Section 401(3) contains an embargo on the High Court to convert a finding of acquittal into one of conviction. “The maxim “nemo debet bis vexari pro eadem causa” (no person should be vexed twice for the same offence) embodies the Rule of common law that no one should be put to peril twice for the same offence”, it added.

The Bench also emphasized, “An order passed in violation of a constitutional guarantee and fundamental right along with the law of the land on the prohibition of a person being tried twice for the same offence while the conviction or acquittal remains in force, would upend all that follows after passing of the order. Therefore, the re-trial of the appellant for a charge for which the appellant was acquitted by the first judgment dated 16.07.2012 while the appellant’s acquittal for the offences under sections 302 and 379 of the IPC remained in force, would be hit by section 300(1) of the Cr.P.C and section 337(1) of the BNSS.

Holding the impugned judgment to be in violation of the constitutional guarantee enshrined in Article 20(2) of the Constitution, the Bench said, “The appellant being re-tried upon a fresh hearing of the matter goes against all principles of law, justice and equity.” Thus, the Bench allowed the Criminal Appeal by setting aside the judgment passed by the Principal District and Sessions Judge and allowed the accused appellant to be set at liberty.

Cause Title: Syed Ayub vs The State of Telangana (Case No.: Crl.A.No.300 of 2025)

Appearance:

Appellant: Advocate P. Krishna Prakash

Respondent: Additional Public Prosecutor M. Ramchandra Reddy

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