P. MANIKANDAN versus CENTRAL BUREAU OF INVESTIGATION AND ORS.

20. In the present case, the High Court, after acquitting the appellant, directed the CBI to re-investigate after considering the relevant material and documents on record. A perusal of the judgment reveals that the learned division bench discussed the material on record in [2024] 12 S.C.R.  P. Manikandan v. Central Bureau of Investigation and Ors. depth in arriving at the conclusion that “this is a case where there is no evidence at all.” Considering that this was an appeal from a sentence of capital punishment, it was observed: “15. It is not known on what basis, particularly there is an acute dearth of evidence, the trial court has gone to the extent of awarding death sentence…” It would be worthwhile to refer to the two succeeding paragraphs as well. “16. The learned Additional Public Prosecutor would point out the observation made by the trial court, while giving conviction, stating that the sexual abuses against children are increasing; that the child marriage is also on the increase; that there is no protection for the children; that the child who innocently followed the accused, while not knowing fatefully unaware of, had been done to death; that the act of the accused is beastly, the accused is liable to be punished by hanging him to death, is totally illegal, unjust and unwarranted. 16.1 Whether these observations alone, without there being basic evidence connecting the crime and the accused, are sufficient to award a capital punishment?. Only if the evidence establishes the crime as against the accused, while considering the quantum of punishment, they may be relevant considerations. In any event, these factors cannot be consideration to record a finding of guilt as against the accused.”

21. This Court has observed in Kailash Gour v. State of Assam26 that any benefit accruing from faulty investigation ought to be given to the accused. The necessary corollary thereof being that simply because the investigation was less than satisfactory, the accused should not be subjected to the same once more. 43. … That an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the (2012) 2 SCC 34 1570 police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution. So also, the quality and creditability of the evidence required to bring home the guilt of the accused cannot be different in cases where the investigation is satisfactory vis-à-vis cases in which it is not. The rules of evidence and the standards by which the same has to be evaluated also cannot be different in cases depending upon whether the case has any communal overtones or in an ordinary crime for passion, gain or avarice. (Emphasis supplied)

22. Having observed as extracted supra, the High Court held that the appellant deserved acquittal. Keeping in view the aforesaid authorities, the question then is, could the High Court have ordered the crime to be re-investigated?

23. Firstly, what must be acknowledged is that there exists a clear difference between retrial and reinvestigation. Retrial implies that the judicial process that starts after the investigation of the crime is complete shall be redone from the start, whereas the latter implies that the police and other investigating authorities are once again required to collect and examine evidence in order to present charges before a Court, so that the trial can commence on such freshly collected evidence.

24. Section 386(b) of Cr.P.C, extracted supra, as also the judgments referred to in the earlier portion of this judgment, unanimously speak of retrial and not reinvestigation. Section 173(8) of the Cr.P.C provides for further investigation with the permission of the magistrate, but not reinvestigation. Such a concept, as it appears, is only invoked in extraneous circumstances. The mere observation that the investigating authorities may have taken a lackadaisical ethical approach does not warrant the accused being put through the wringer once more for the same offence.

25. Learned counsel for the respondent while supporting the contention that the High Court had the requisite power to order reinvestigation cited the judgment of this Court in Devendra Nath Singh (supra), wherein, relying on Vinay Tyagi v. Irshad Ali27 it has been observed (2013) 5 SCC 762 [2024] 12 S.C.R.  P. Manikandan v. Central Bureau of Investigation and Ors. that fresh, de novo and reinvestigation are synonymous expressions and the law applicable thereon would be the same. This observation, we find, was made in the context of Section 482 Cr.PC or Article 226 of the Constitution of India. In the present case, however, the direction for reinvestigation was given under Section 386 Cr.PC. Since the applicable power is different in the present case, Devendra Nath (supra) is distinguished on facts.

26. In that view of the matter, the direction of the High Court, transferring the investigation to CBI and directing them to reinvestigate the offence allegedly committed, was without the authority of law and, therefore, has to be set aside. We may notice certain authorities of this Court where observations have been made qua transfer of investigation to C.B.I., as follows:- (a) State of W.B. v. Committee for Protection of Democratic Rights:28 “70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed limitations on the exercise of these constitutional powers. The very plenitude of the power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and (2010) 3 SCC 571 1572 enforcing the fundamental rights. Otherwise CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.” (Emphasis Supplied) (b) Mandakini Diwan and Anr. v. High Court of Chhattisgarh and Ors:29 “14. It is true that power to direct CBI to conduct investigation is to be exercised sparingly and such orders should not be passed in routine manner. In the present case, the aggrieved party has raised allegations of bias and undue influence on the police machinery of the State of Chhattisgarh. Coupled with the fact that the thorough, fair and independent investigation needs to be carried out to find out the truth about the whole incident and in particular about the ante mortem injuries. We are of the view that such a direction needs to be issued in the present case.”

27. A perusal of the judgments above shows that the transfer to CBI, as already observed must take place in special circumstances, or else the agency, being with limited resources shall be overburdened and rendered ineffective. In directing as such, the High Court has not referred to any such special circumstance arising in the present case. On such further count, the transfer of the case to CBI is rendered questionable and therefore set aside.

28. Let us now move to the next issue. Apart from the fact that reinvestigation of the same offence or the same set of facts is impermissible, the appellant has also canvassed the point that the High Court’s order goes against the well-established principle of criminal jurisprudence that a person cannot be punished for the same offence twice or the principle of double jeopardy. Before proceeding to the merits of such a claim in the present case, it would be apposite to examine the judicial pronouncements on this count. 2024 SCC Online SC 2448 [2024] 12 S.C.R.  P. Manikandan v. Central Bureau of Investigation and Ors.

29. The appellant submits that the principle of double jeopardy is not only recognized by the Constitution but also reiterated in several statutory enactments. They are: – The Constitution recognizes this principle in Article 20 which reads as under:- “20. Protection in respect of conviction for offences.— (1) 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 the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself.” Section 300 of Cr.P.C.: “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. (2) A person acquitted or convicted of any offence may be afterwards tried, with the consent of the State Government, for any distinct offence for which a separate charge might have been made against him at the former trial under sub-section (1) of Section 220. (3) A person convicted of any offence constituted by any act causing consequences which, together with such act, constituted a different offence from that of which he was convicted, may be afterwards tried for such last-mentioned 1574 offence, if the consequences had not happened, or were not known to the Court to have happened, at the time when he was convicted. (4) A person acquitted or convicted of any offence constituted by any acts may, notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any other offence constituted by the same acts which he may have committed if the Court by which he was first tried was not competent to try the offence with which he is subsequently charged. (5) A person discharged under Section 258 shall not be tried again for the same offence except with the consent of the Court by which he was discharged or of any other Court to which the first-mentioned Court is subordinate. (6) Nothing in this section shall affect the provisions of Section 26 of the General Clauses Act, 1897 (10 of 1897) or of Section 188 of this Code. Explanation. —The dismissal of a complaint, or the discharge of the accused, is not an acquittal for the purposes of this section.” Section 40 of the Evidence Act, 1872: “40. Previous judgments relevant to bar a second suit or trial.—The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.” Section 71 of IPC: “71. Limit of punishment of offence made up of several offences.—Where anything which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such of his offences, unless it be so expressly provided. [Where anything is an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, or [2024] 12 S.C.R.  P. Manikandan v. Central Bureau of Investigation and Ors. where several acts, of which one or more than one would by itself or themselves constitute an offence, constitute, when combined, a different offence, the offender shall not be punished with a more severe punishment than the Court which tries him could award for any one of such offences.]” Section 26 of the General Clauses Act, 1897: “26. Provision as to offences punishable under two or more enactments.—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.”

30. Now, turning to the judicial pronouncements, Article 20 of the Constitution of India:- (a) Maqbool Hussain v. State of Bombay:30 “12. The Fifth Amendment of the American Constitution enunciated this principle in the manner following: “… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled, in any criminal case, to be witness against himself….” 14. These were the materials which formed the background of the guarantee of fundamental right given in Article 20(2). It incorporated 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 circumscribed 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. (1953) 1 SCC 736 1576 15. The words “before a court of law or judicial tribunal” are not to be found in Article 20(2). But if regard be had to the whole background indicated above it is clear that in order that the protection of Article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of Article 20 and the words used therein:“convicted”, “commission of the act charged as an offence”, “be subjected to a penalty”, “commission of the offence”, “prosecuted and punished”, “accused of any offence”, would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court of law or a judicial tribunal in accordance with the procedure prescribed in the statute which creates the offence and regulates the procedure.” (b) S.A. Venkataraman v. Union of India:31 “6. The scope and meaning of the guarantee implied in Article 20(2) of the Constitution has been indicated with sufficient fullness in the pronouncement of this Court in Maqbool Hussain v. State of Bombay [Maqbool Hussain v. State of Bombay, (1953) 1 SCC 736 : 1953 SCR 730] . The roots of the principle, which this clause enacts, are to be found in the well-established rule of English Law which finds expression in the maxim “nemo debet bis vexari” — a man must not be put twice in peril for the same offence. If a man is indicted again for the same offence in an English court, he can plead, as a complete defence, his former acquittal or conviction, or as it is technically expressed, take the plea of “autrefois acquit” or “autrefois convict”. (1954) 1 SCC 586 [2024] 12 S.C.R.  P. Manikandan v. Central Bureau of Investigation and Ors. The corresponding provision in the Federal Constitution of the USA is contained in the Fifth Amendment, which provides inter alia: “… nor shall any person be subjected for the same offence to be twice put in jeopardy of life and limb.…” This principle has been recognised and adopted by the Indian Legislature and is embodied in the provisions of Section 26 of the General Clauses Act and Section 403 of the Criminal Procedure Code. 7. Although these were the materials which formed the background of the guarantee of the fundamental right given in Article 20(2) of the Constitution, the ambit and contents of the guarantee, as this Court pointed out in the case referred to above, are much narrower than those of the common law rule in England or the doctrine of “double jeopardy” in the American Constitution. Article 20(2) of our Constitution, it is to be noted, does not contain the principle of “autrefois acquit” at all. It seems that our Constitution- makers did not think it necessary to raise one part of the common law rule to the level of a fundamental right and thus make it immune from legislative interference. This has been left to be regulated by the general law of the land. In order to enable a citizen to invoke the protection of clause (2) of Article 20 of the Constitution, there must have been both prosecution and punishment in respect of the same offence. The words “prosecuted and punished” are to be taken not distributively so as to mean prosecuted or punished. Both the factors must co-exist in order that the operation of the clause may be attracted. The position is also different under the American Constitution. There the prohibition is not against a second punishment but against the peril in which a person may be placed by reason of a valid indictment being presented against him, before a competent court, followed by proper arraignment and plea and a lawful impanelling of the jury. It is not necessary to have a verdict at all [Willis on Constitutional Law, p. 528.].” 1578 Both the above cited judgments were recently followed in T.P. Gopalakrishnan v. State of Kerala.32 (c) State v. Nalini:33 “236. The well-known maxim “nemo debet bis vexari pro eadem causa” (no person should be twice vexed for the same offence) embodies the well-established common law rule that no one should be put to peril twice for the same offence. The principle which is sought to be incorporated into Section 300 of the Criminal Procedure Code is that no man should be vexed with more than one trial for offences arising out of identical acts committed by him. When an offence has already been the subject of judicial adjudication, whether it ended in acquittal or conviction, it is negation of criminal justice to allow repetition of the adjudication in a separate trial on the same set of facts. 237. Though Article 20(2) of the Constitution of India embodies a protection against a second trial after a conviction of the same offence, the ambit of the clause is narrower than the protection afforded by Section 300 of the Criminal Procedure Code. It was held by this Court in Manipur Admn.v. Thokchom Bira Singh [AIR 1965 SC 87 : (1965) 1 Cri LJ 120] that “if there is no punishment for the offence as a result of the prosecution, Article 20(2) has no application”. While the clause embodies the principle of autrefois convict Section 300 of the Criminal Procedure Code combines both autrefois convict and autrefois acquit. …” (d) Monica Bedi v. State of A.P.34: “22. Article 20(2) embodies a protection against a second trial and conviction for the same offence. The fundamental right guaranteed is the manifestation of a long struggle by the mankind for human rights. A similar guarantee is to be found in almost all civilised societies governed by rule of law. The well-known maxim nemo debet bis vexari pro una (2022) 14 SCC 323 (1999) 5 SCC 253 (2011) 1 SCC 284 [2024] 12 S.C.R.  P. Manikandan v. Central Bureau of Investigation and Ors. et eadem causa embodies the well-established common law rule that no one should be put on peril twice for the same offence. Blackstone referred to this universal maxim of the common law of England that no man is to be brought into jeopardy of his life more than once for the same offence. 23. The fundamental right guaranteed under Article 20(2) has its roots in common law maxim nemo debet bis vexari — a man shall not be brought into danger for one and the same offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former conviction, or as it is technically expressed, take the plea of autrefois convict. This in essence is the common law principle. The corresponding provision in the American Constitution is enshrined in that part of the Fifth Amendment which declares that no person shall be subject for the same offence to be twice put in jeopardy of life or limb. The principle has been recognised in the existing law in India and is enacted in Section 26 of the General Clauses Act, 1897 and Section 300 of the Criminal Procedure Code, 1973. This was the inspiration and background for incorporating sub-clause (2) into Article 20 of the Constitution. But the ambit and content of the guaranteed fundamental right are much narrower than those of the common law in England or the doctrine of “double jeopardy” in the American Constitution.” See also Sangeetaben Mahendrabhai Patel v. State of Gujarat.35 31. In our considered view, the position of law that the principle applies is unquestionable. The three conditions laid down in T.P. Gopalakrishnan (supra) are: Firstly, there must have been previous proceedings before a court of law or a judicial tribunal of competent jurisdiction in which the person must have been prosecuted. The said prosecution must be valid and not null and void or abortive. Secondly, the conviction or acquittal in the previous proceeding must be in force at the time of the second proceeding in relation to the same offence and same set of facts, for which he was prosecuted and punished in the first proceeding. Thirdly, the subsequent proceeding must be (2012) 7 SCC 621 1580 a fresh proceeding, where he is, for the second time, sought to be prosecuted and punished for the same offence and same set of facts. 32. In the present facts, a previous proceeding did take place wherein the Trial Court convicted the appellant and sentenced him to death. There is no question as to the Court’s competence or jurisdiction. The first condition is, therefore, met. The acquittal awarded by the High Court has to remain in force for the cardinal principle of criminal jurisprudence of innocent until proven guilty applies and cannot be displaced in except in circumstances otherwise provided by law. The second principle is also met. Regarding the third condition, had the order been for retrial, the court could have held that the condition remained unmet; however, since the direction was for reinvestigation and that too by a different investigation agency, it necessarily has to begin from zero. Hence, the second investigation, chargesheet and examination of witnesses would classify as meeting the third condition. 33. In view of the discussion as aforesaid, this Court is of the view that the right enshrined in Article 20(2) of the appellant stands violated. 34. Since this Court has come to the conclusion as above, there survives no need to examine the applicability of Section 300 of Cr.P.C and other provisions of law where the principle of double jeopardy stands enshrined. 35. Vision of the High Court, in our considered view was bad in law, and is therefore quashed and set aside. All proceedings subsequent to such direction, necessarily have to be held as such and therefore quashed and set aside as well. The appellant stands acquitted of all charges. 36. The question of law raised in this appeal, is answered in the above terms. The appeal is allowed as aforesaid. Pending application(s), if any, shall stand disposed of. Result of the case: Appeal allowed. †Headnotes prepared by: Ankit Gyan