‘DOCTRINE OF AUTREFOIS ACQUIT AND AUTREFOIS CONVICT’ – IT’S APPLICABILITY TO INCOME TAX ACT
LLB., FCS., FICWA
kpcrao.india@gmail.com
It is a fundamental principle of criminal jurisprudence that no person should be vexed twice for the same offence (nemo debet bis vexari pro eadem causa). Once a person has been tried and acquitted or convicted of an offence by a competent court, he cannot be tried again for the for the same offence so long as the acquittal or conviction operates. This doctrine is well recognized by the Indian Constitution under Article 20(2) which reads as follows: “No person shall be prosecuted and punished for the same offence more than once”. It is also known as the ‘Rule Against Double Jeopardy’ and is treated as one of the fundamental rights.
Doctrine Explained
Section 300(1) of the Criminal Procedure Code provides that 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 charges from one made against him might have been made, or for which he might have been convicted.
Section 300 is based upon the general principle of ‘autrefios acquit’ (formerly acquitted) and ‘autrefios convict’ (formerly convicted) recognized by English Courts. It is also acceptance of the principle of ‘issue-estoppel’ followed in Australia. Started simply, the principle of ‘issue estoppel’ is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached, such a finding would constitute an ‘estoppel’ or ‘res judicata’ between the parties and cannot be reagitated in subsequent proceedings. It is based on the well known doctrine which controls re-agitation of issues which are settled by prior litigation.
The Crown is as much precluded by an estoppel by judgment in criminal proceedings as is a subject in civil proceedings. In the leading case of Sambasivam v. Public Prosecutor[1], Lord Mac Dermot propounded:
“The effect of verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the jurisdiction.
Conditions
In order that the bar of Section 300 may apply, the following conditions must be satisfied:
1) the accused must have been tried for an offence,
2) the trial must have been by a competent court,
3) he must have been acquitted of convicted of that offence, and
4) Such conviction or acquittal must be operative.
Exceptions
There are, however, certain exceptions to the above rule which have been discussed in sub-section (2) to (4) of section 300.
a) Distinct Offences:
A person acquitted or convicted of any offences may afterwards be tried with consent of the State Government for any distinct offence for which a separate charge might have been made against him.
b) Consequential Acts:
A person convicted of any offence constituted of any act may afterwards be tried if consequences take place subsequently which had not happened at the time when he was convicted.
c) Jurisdiction of Courts
A person acquitted or convicted of any offence may subsequently be tried for any other offence constituted by the same acts if the court by which he was first tried was not competent to try it.
d) Dropping of Proceedings
A person discharged under Section 258 can be tried again for the same offence only with the consent of the court by which he was discharged or by a superior court.
e) Offences Punishable Under Different Acts
Where an act or omission constitutes an offence under two or more enactments, the offender can be tried again even if he is tried earlier under a different enactment.
f) Offences Committed Outside India
When any citizen of India commits an offence outside India or on the high seas or any person not being a citizen of India commits an offence on any ship or aircraft registered in India, he can be tried in India notwithstanding his trial by a foreign court.
g) Dismissal of Complaint
Dismissal of a complaint cannot be said to be an acquittal and, hence fresh complaint is not barred.
h) Discharge of Accused
Discharge of an accuse person also does not operate as a bar to institution of fresh proceedings against the accused for the same offence.
Income tax Act – Applicability of this Doctrine
The principle underlying the plea of Autrefois Acquit is not fully stated merely by saying that an accused person should not be vexed twice by prosecution on the same set of facts. Autrefois Acquit is a plea by a criminal, that he was heretofore acquitted of the same offence. By this plea, a person charged with an offence pleads that he had been tried before and acquitted for the same offence by a competent court. By this plea it is bar to a criminal action, stating that the defendant has already been indicated and tried for the same alleged offence and has been acquitted.
Conversely the principle of Autrefois convict is also another doctrine which needs to be discussed. This rule has originally been enshrined in Article 20 of the Constitution of India which states that “no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence, and no person shall be prosecuted and punished for the same offence more than once.” This rule to be studied more so in tax matters as there was a point to be discussed whether prosecution can be launched in a tax case where penalty is already levied.
The Supreme Court in Maqbool Hussain vs. State of Bombay[2] observed.
“Article 20(2) incorporates within its scope the plea of “autrefois convict “ as known to the British Jurisprudence or the plea of double jeopardy as known to the American Constitution, but circumscribes it by providing that there should be not only a prosecution but also a punishment in the first instance in order to operate as a bar to a second prosecution and punishment for the same offence.”
Article 20(2) contemplates proceedings of the nature of criminal proceedings and the prosecution in this context means an initiation of proceedings of a criminal nature. The first part of Article 20(1) prohibits a conviction while the second part deals with penalty that may be inflicted on conviction. The word “penalty” has been used to denote the sentence or punishment. Like Clause (2), Clause (1) also contemplates proceedings of a criminal nature.
A criminal proceeding may be defined as one, which if carried to its conclusion may result in imposition of sentence such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which, in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and orders aimed at preventing vagrancy are contemplated to be passed.
Penalties are not in the nature of offences. In the Income-tax Act, Chapter XXI consisting of sections 271 to 273 deal with penalties imposable, while Chapter XXII consisting of sections 275A to 280 prescribe what are the offences under the Act and the punishment imposable for the said offences. In view of this position, penalty proceedings cannot be equated with criminal proceedings attracting punishment. The objects of the two provisions is clearly distinguishable and is different. The one entailing the prosecution and punishment is to vindicate public justice by punishing the offender, whereas the object of the penalty proceedings is to render evasion unprofitable and to secure to the State the compensation for the damages or attempted evasions. According to the decision of the Kerala High Court in P. Ummali Umma vs. I.A.C.[3] they are mutually exclusive remedies under the Income-tax Act, 1961.
Conclusion
The imposition of penalty under the Income-tax Act is neither a prosecution nor a punishment for any offence and therefore, the accused is not exposed to any double jeopardy. The proceedings for the imposition of penalty taken against an assessee under the Income tax Act, are distinct from the criminal complaints filed against him. They can, therefore, continue simultaneously. Even if the offences punishable under the provisions of section 277 of the Income-tax Act, 1961 and section 193 of the Indian Penal Code may be somewhat similar, they are not identical. [Gulabchand Sharma vs. H.P. Sharma, CIT[4]].
These are concurrent remedies and the invocation of one does not necessarily dispense with, obviate or oust the other. The imposition of penalties under the Act by the authorities, and the conviction in a Court of law for an offence created by the Act, do not attract the principle of double jeopardy either. In ordinary circumstances, the decision to prosecute an assessee or a deemed assessee, under the penal provisions of the Act is a decision taken by the officer empowered to initiate action being satisfied on the objective material before him that there is a case for prosecution without a judicial determination under the Act as to taxability quantification of liability or liability to any penalty etc.
There are large number of cases where criminal law and civil law can run side by side. The object of the criminal law is to punish an offender, who commits an offence against a person, property of the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all or seeing the wrong doer in cases like arson, accident etc. It is anathema to suppose that when a civil remedy is available criminal prosecution is completely barred. The two types of actions are different in content, scope and import. [Pratibha Rani vs. Suraj Kumar[5]].
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[Published in Circuit Magazine (Monthly), ICWAI, January, 2011]
[Published in Circuit Magazine (Monthly), ICWAI, January, 2011]
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