Nemo Debet Bis Vexari Pro Una Et Eadem Causa.
Nope. We don’t read Latin in India. Not the Hon’ble
Supreme Court at least. Not in favour of accused nevertheless.
Thankfully, as of this moment it’s
not unconstitutional to study the same. It roughly translates to-
“No-one shall be tried or punished twice in
regards to the same event.”
Ironically, Article 20 (2) of our very own constitution still reads
“No person
shall be prosecuted and punished for the same offence more than once.” [emphasis supplied]
Even Section 300 of The Code Of Criminal
Procedure, 1973 reads-
“300. Person once convicted or acquitted not to be
tried for same offence.(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 sub-
section (1) of section 221, or for which he might have been convicted under
sub- section (2) thereof.” [emphasis supplied]
But Section 386 CrPC reads-
“Power
of the Appellate Court. After perusing such record and hearing the appellant or
his pleader, if he appears, and the Public Prosecutor if he appears, and in
case of an appeal under section 377 or section 378, the accused, if he appears,
the Appellate Court may, if it
considers that there is no sufficient ground for interfering, dismiss the
appeal, or may-
(a) in an appeal from an order or acquittal,
reverse such order and direct that further inquiry be made, or that the accused
be re- tried or committed for trial, as the case may be, or find him guilty
and pass sentence on him according to law; ” [emphasis supplied]
OOPS!!! [emphasis supplied]
On
20.07.2015, the division bench of Supreme Court in Bablu Kumar and Ors. v. State of Bihar and Anr. (Criminal Appeal No. 914 OF
2015) has clearly ignored the ill- fated latin maxim out of the realm of the
judgment. Same is the case with the above mentioned Article & sections. The
focus of discussion was the end result that the Supreme Court desired- a
retrial. For which the Hon’ble Court had discussed quite a few case laws
primarily focussing on the powers of High Court to order a retrial u/s 401 CrPC
(which silently extends to abovementioned Section 386 CrPC). Yet again, I find
it highly ironical that the case laws are emphasized more by the Hon’ble Court in
a criminal case than hard letters of law.
In
brief, the Supreme Court was aghast in so many adjectives, to see an accused being
acquitted u/s 232 CrPC of Sections 147, 148, 149, 341, 342 and 302 of the
Indian Penal Code, 1860, after the trial court literally stuck to a High Court order
of completing the trial within 9 months and the laxity of prosecution in examining
every witness except one, mainly due to repeated non- service of the main
witness/ informant thereby closing the prosecution evidence prematurely and the
trial Judge allowing the same to happen to meet the deadline. After acquittal
the informant approached High Court under Section 401 CrPC for revision and it was
noticed that service report of summons were absent, hence a retrial was
ordered. The Supreme Court after discussing various case laws & not
discussion Section 300(1) of CrPC at all, upholds the order of High Court. The
Double Jeopardy contention of the appellant/ accused is mostly negated on the
ground that the earlier trial was akin to a mock trial and it was not a fair
trial. The term ‘fair trial’ has been repeatedly used and might be the core of
the ratio decidendi. However there
are only two parties to the case, when the trial/ prosecution has been conducted
by prosecution/ state, then certainly the trial can not be termed as unfair to
him. The other party is accused, who certainly is not unhappy about the acquittal;
hence he shuns any share of unfairness too. The Trial Court has worked as per
its mandate and efficiency. Just to clarify, there is not a whisper of collusion
or fraud being perpetrated on behest of the accused. So whats interesting to note
is that the parties to trial are not important for a fair trial, but an
external party is, and so much so that it results in a retrial after an
acquittal. I say this at the cost of sounding insensitive to the victim. But
for legal clarity, I can’t mince words and can only say that victim has a very
limited right in the criminal law as it is primarily an adversarial matter between
the accused and the state. The victim, irrespective of this beautiful judgment
could have and may resort to civil remedies in law. Suing the state for a mis(s)trial
for the conduct of the trial Court Judge & the prosecutor was the most
appropriate way, and still is.
Supreme Court may graciously fill the legal void as the moral repository of the society, but when faced with hard law, to bypass the same is a judicial crime. The Supreme Court ought to have weighed the rights of the accused fairly. It seemed as if the accused was also being blamed for having taken the benefit of acquittal.
The Supreme Court by above logic/ ratio somehow implies that in lack of evidence adduced coupled with acquittal, the appellate/ revisional courts should send back the case for retrial (possibly for a conviction). I wonder if the day is far, when the same would be done by the Hon'ble Court for the lack of investigative acumen etc. And whether/ where would this trend stop. Do we let hit & trial method in, for the sake for 'fair trial' for as many times as it takes, for the prosecution to reach a conviction. I guess this is the chain of thought which more convinces me heavily towards the concept of 'Double Jeopardy'. But hey, I am not Supreme Court. It reigns otherwise.
As I see it, you only get one chance to hatch an egg, if you are not careful, you will ruin the Chick. If the egg does not hatch due to x,y or z reason, it may be a disheartening fact for some, but you really can’t re-hatch it by any sort of incubator or brooding. That’s double Jeopardy.
The best part of the judgment remains that the Supreme Court really pitched 'fair trial' against 'Double Jeopardy'. And yet the very first word of
the electronic Judgment proudly reads “Reportable”. Go figure.
Postscript:
One has to be completely blind, deaf & mute to the interpretational resizing
of part III of the constitution to notice that though the Hon’ble Supreme Court
has been expanding the realm of most of the Fundamental rights under this part
beyond elasticity, the arena of rights of the accused has been ever shrinking.
And that is just constitution we are talking about. In 65 years of our
constitutional jurisprudence, I dare say that there are not even half a dozen of
landmark judgments liberally interpreting either Article 20 (1), (2) or (3) and
Article 22. Damn, even Supreme Court judges & so called constitutional
experts would be stumped if they have to name even one of them. (D.K. Basu, Hussainara
Khatoon etc. may come to mind, but let’s face it, they are more in nature of
civil rights than a substantive right in criminal law). Personally I would
prefer Article 21 to play a pivotal role in development of fairness in Indian
Criminal Law, however it is sad to note that Article 21 has been given an unnecessarily
inflated meaning when it comes to civil rights and is perhaps only restricted when
it touches the contours of criminal law. And wherever they speak of ‘fair trial’
& ‘Natural Justice’, in theory & in practice they turn out to be mere
lip service. The reason for all this is nothing else but a simple but wrongly
held common belief that all accused are criminals. Well, I don’t blame society
for it anymore, for the sole reason that I see the Supreme Court falling for the
same complex. Finding courage to uplift the ‘condemned’ simplicitor is no
courage at all, it is driven by the desire to win laurels. The real courage
lies in seeing beyond convenient right as well as seemingly immediate wrong, and
acting for that ‘class of condemned’ which invokes no popular empathy. Only then
when you lend your hand to such condemned and walk with them for a moment will
you sense the chilling heat they face as criminals. Alas, the Constitution is devoid of the word Courage.
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