Open Book Examination

Md. Arifin Arif

LLBA2018000559

Question: “Person once convicted or acquitted not to be tried for the same offence”. -Illustrate
the statement as per the laws applicable in Bangladesh.
Answer: The statement based on the Doctrine of double jeopardy in criminal proceeding, and
the laws applicable in Bangladesh, relating to this Doctrine is given below.
Doctrine of double jeopardy at law means 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.
The age-old principle double jeopardy has been given legal shape in Bangladesh through
article 35(2) of the Constitution of the Bangladesh. It provides that no person shall be
prosecuted and punished for the same offence more than once. This is based on another
principle which is: “no person should be vexed, prosecuted or tried twice for the same
offence.” This principle is further confirmed in Section 26 of the General Clauses Act of
1897 and in Section 403 of the Code of Criminal Procedure of 1898.
Section 26 of the General Clauses Act, 1897 goes as follows: 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 of those enactments, but shall not be liable to
be punished twice for the same offence. Section 403 has been made in such a way that the
above named principles of natural justice may have their full legal application.
Section 403 of CrPC states that a person once convicted or acquitted not to be tried for
same offence, Explanation clause to this section enunciates that the dismissal of a
complaint, the stopping of proceedings under section 249 or the discharge of the accused is
not an acquittal for the purposes of this section.

Though the question as to whether the accused persons who were acquitted under section
247 can or cannot be tried again on the selfsame allegation is a complicated question of
law, it is well settled that if the accused persons are acquitted under section 247 CrPC,
second proceeding on the selfsame allegations will definitely be barred under section 403
of CrPC. The reason is obvious that in view of the provisions of section 403, it is clear that
the provisions therein cover almost all the circumstances involving subsequent trial of a
person who was tried earlier.
We are aware that several judicial pronouncements of the Supreme Court of Bangladesh
have strongly authenticated this stance.

From the case of Dewan Obaidur Rahman v State reported in 7 BLT (AD) 227, it appears
that when the complainant failed to appear in the court on the date fixed for appearance of
the accused, the concerned judicial magistrate acquitted the accused under section 247 of
the Code.

It is to be noted that in the cases where the order of acquittal in any other case having the
same cause of action and between the same parties is still in force, it can be legally
presumed that the present charges are tantamount to be groundless as the case itself is
barred by section 403 of the CrPC and an instance of double jeopardy. Hence, at the stage
of charge-framing all the accused persons of the earlier case may be legally discharged
from the latter case in accordance with sections 241A and 403 of the CrPC.

The guarantee of protection against double jeopardy in criminal proceedings is a significant

notion of law. This article discusses the juridical aspects of the guarantee as a human right
by infusing the texts of different normative instruments. The protection against double
jeopardy is considered as a cogent element of the right to a fair trial and a peremptory plea
of the defence in any given judicial proceedings dealing with criminal matters.