No double jeopardy bar if there was no trial: Supreme Court

The bar of double jeopardy does not arise if an accused was discharged of a criminal offence, even before the commencement of trial, on the basis of an invalid sanction for prosecution, the Supreme Court has held.

Article 20 (2) of the Constitution mandates that a person cannot be prosecuted or punished twice for the same offence.

A Bench of Justices R. Banumathi and Indira Banerjee held in an October 30 judgment that if an “accused has not been tried at all and convicted or acquitted, the principles of double jeopardy cannot be invoked at all.”

If an earlier order of sanction was found to be invalid, there is no bar for the competent authority to issue a proper order of sanction for prosecution, Justice Banumathi, who wrote the verdict for the Bench in a case under the Prevention of Corruption Act, observed.

“The courts are not to quash or stay the proceedings under the Act merely on the ground of an error, omission or irregularity in the sanction granted by the authority unless it is satisfied that such error, omission or irregularity has resulted in failure of justice,” the Supreme Court observed.

The judgment is based on an appeal filed by the State of Mizoram against an order passed by the Gauhati High Court in August 2015, upholding a Special Court decision to decline to entertain a second chargesheet filed in a corruption case against the accused, Dr. C. Sangnghina, on the ground of double jeopardy.

Allowing the appeal, the apex court observed that the accused was earlier discharged due to lack of proper sanction and the principle of double jeopardy did not apply.

“There was no bar for filing fresh/supplementary charge sheet after obtaining a valid sanction for prosecution. Once it found that there was no valid sanction, the special court should have directed the prosecution to do the needful. The special court has not given sufficient opportunities to produce valid prosecution sanction from the competent authority. It erred in refusing to take cognisance of the case even after production of valid prosecution sanction obtained from the competent authority and the High Court was not right in affirming the order of the special court,” the SC reasoned.

The corruption case was filed by the Aizawl police in February 2009 for misappropriation of public money. During inquiry, it was detected that the respondent had acquired valuable assets disproportionate to known sources of income.

The first invalid sanction for prosecution was issued by the Commissioner-Secretary, Department of Personnel & Administrative Reforms (DP & AR) directly without the Governor’s approval. Following the discharge of the accused by the special court, the Governor accorded a fresh sanction in December 2013.

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