P. MANIKANDANversusCENTRAL BUREAU OF INVESTIGATION AND ORS.

                  [2024] 12 S.C.R. 1553 : 2024 INSC 1007

                            P. Manikandan
                                   v.
                Central Bureau of Investigation and Ors.
                       (Criminal Appeal No. 5478 of 2024)
                                19 December 2024
                 [C.T. Ravikumar and Sanjay Karol,* JJ.]


                              Issue for Consideration
          Whether the High Court was justified in directing re-investigation
          and retrial of the same offence on the same set of facts, after
          acquitting the accused by giving him the benefit of doubt; Whether,
          in the attending fact and circumstances, the de novo investigation
          violated the principle of double jeopardy and the appellant’s right
          u/Art.20(ii) of the Constitution of India.

                                     Headnotes†
          Constitution of India – Art.20(ii) – Code of Criminal Procedure,
          1973 – s.386 – The Trial Court held appellant guilty for the
          offence punishable u/ss.364A and 302 of IPC – Appellant
          preferred appeal – The High Court set aside the order of the
          Trial Court and held that the prosecution had failed to establish
          the guilt of the appellant beyond all reasonable doubts –
          Consequently, appellant was acquitted of all charges –
          However, the High Court further directed the transfer of all
          relevant documents to the Central Bureau of Investigation with
          the direction to conduct a de-novo investigation and submit
          a final report – Correctness:
          Held: In the present case, the High Court acquitted the appellant
          and directed to transfer the documents and relevant material to
          conduct the de novo investigation before CBI on the same facts
          for the same offences and to proceed against the appellant in
          accordance with law, by exercising the power u/s.386 of Cr.P.C –
          S.386(b) of Cr.P.C and also various judgments of the Supreme
          Court speak of retrial and not reinvestigation – S.173(8) of the
          Cr.P.C provides for further investigation with the permission of
          the magistrate, but not re-investigation – Such a concept, as it
          appears, is only invoked in extraneous circumstances – The mere
          observation that the investigating authorities may have taken a
*Author
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    lackadaisical ethical approach does not warrant the accused being
    put through the wringer once more for the same offence – The
    transfer to CBI, as already observed must take place in special
    circumstances – The High Court has not referred to any such
    special circumstance arising in the present case – The direction of
    the High Court, transferring the investigation to CBI and directing
    them to re-investigate the offence allegedly committed, was without
    the authority of law and, therefore, has to be set aside – As far
    as principle of double jeopardy is concerned, the three conditions
    were laid down in T.P. Gopalakrishnan: 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 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 – 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 re-investigation 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 – In view of the discussion,
    this Court is of the view that the right enshrined in Article 20(2) of
    the appellant stands violated. [Paras 12, 24, 26, 27, 31, 32, 33]

    Code of Criminal Procedure, 1973 – Retrial and Reinvestigation
    difference:
    Held: There exists a clear difference between retrial and
    reinvestigation – Retrial implies that the judicial process that starts
[2024] 12 S.C.R.                                                           1555

       P. Manikandan v. Central Bureau of Investigation and Ors.


     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.
     [Para 23]

                              Case Law Cited
     Ukha Kolhe v. State of Maharashtra [1964] 1 SCR 926 : AIR 1963
     SC 1531 – followed.
     Mohd. Hussain v. State (Govt. of NCT of Delhi) [2012] 10 SCR 480 :
     (2012) 9 SCC 408; Ajay Kumar Ghoshal & Ors. v. State of Bihar &
     Anr. [2018] 1 SCR 112 : (2017) 12 SCC 699; Nasib Singh v. State
     of Punjab [2021] 13 SCR 566 : (2022) 2 SCC 89; Kailash Gour v.
     State of Assam [2011] 16 SCR 318 : (2012) 2 SCC 34; State of
     W.B. v. Committee for Protection of Democratic Rights [2010] 2 SCR
     979 : (2010) 3 SCC 571; Mandakini Diwan and Anr. v. High Court
     of Chhattisgarh and Ors [2024] 9 SCR 86 : 2024 SCC Online SC
     2448; Maqbool Hussain v. State of Bombay [1953] 1 SCR 730 :
     (1953) 1 SCC 736; T.P. Gopalkrishnan v. State of Kerala [2022]
     14 SCR 478 : (2022) 14 SCC 323; S.A. Venkataraman v. Union
     of India [1954] 1 SCR 1150 : (1954) 1 SCC 586; State v. Nalini
     [1999] 3 SCR 1 : (1999) 5 SCC 253; Monica Bedi v. State of A.P.
     [2010] 13 SCR 522 : (2011) 1 SCC 284 – relied on.
     Devendra Nath Singh v. State of Bihar [2022] 15 SCR 692 : (2023)
     1 SCC 48 – distinguished.
     Satyajit Banerjee and Ors v. State of West of Bengal and Ors.
     [2004] Supp. 6 SCR 294 : (2015) 1 SCC 115; Ajay Kumar Ghoshal
     and Ors v. State of Bihar and Anr. [2017] 1 SCR 469 : (2017) 12
     SCC 699; Zahira Habibulla H. Sheikh v. State of Gujarat [2004]
     3 SCR 1050 : (2004) 4 SCC 158; Subrata Choudhury alias
     Santosh Choudhury and Ors. v. State of Assam & Anr. [2024] 12
     SCR 1 : 2024 SCC Online SC 3126; Amandeep Singh Saran v.
     State of Chhattisgarh [2023] 16 SCR 435 : (2024) 6 SCC 541;
     Deputy Inspector General of Police V. S. Samuthiram [2012] 11
     SCR 174 : (2013) 1 SCC 598; Vinay Tyagi v. Irshad Ali [2012]
     13 SCR 1005 : (2013) 5 SCC 762; Sangeetaben Mahendrabhai
     Patel v. State of Gujarat [2012] 3 SCR 1155 : (2012) 7 SCC
     621 – referred to.
1556                                                           [2024] 12 S.C.R.

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                                               List of Acts
       Constitution of India; Code of Criminal Procedure, 1973; Protection
       of Children from Sexual Offences Act, 2012; Evidence Act, 1872;
       General Clauses Act, 1897.

                                            List of Keywords
       Reinvestigation; Retrial; Principle of double jeopardy; Section 386
       of Cr.P.C; Article 20(ii) of the Constitution; Faulty investigation.

                                            Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       5478 of 2024
       From the Judgment and Order dated 04.07.2023 of the High Court
       of Judicature at Madras in CRLOP No. 5826 of 2023

                                    Appearances for Parties
       K. K. Mani, Ms. T. Archana, Rajeev Gupta, Advs. for the Appellant.
       Vikramjit Banerji, Mrs. Archna Pathak Dave, A.S.Gs., Rupesh
       Kumar, Sr. Adv., Mukesh Kumar Maroria, Saransh Kumar,
       Mrs. Meera Patel, Ishaan Sharma, Advs. for the Respondents.

                       Judgment / Order of the Supreme Court

                                               Judgment

       Sanjay Karol J.

       Leave Granted.
2.     The present appeal arises from the judgment and order dated 4th July,
       2023 passed by the High Court of Judicature at Madras in CRL.O.
       P. No.5826 of 2023 and CRL.M.P.Nos.3640 and 3642 of 2023,
       whereby the High Court dismissed the petition for quashing filed by
       the appellant under Section 482 of the Criminal Procedure Code,
       19731 against the chargesheet/final report and proceedings pending
       before the Special Court for the trial of cases under the Protection


1    hereinafter referred to as “Cr.P.C.”
[2024] 12 S.C.R.                                                      1557

         P. Manikandan v. Central Bureau of Investigation and Ors.


       of Children from Sexual Offences Act, 2012,2 Tiruvannamalai, Tamil
       Nadu in Special S.C.No.42 of 2021.
3.     The crux of the present appeal is that on 19th June, 2013, a case was
       registered bearing Crime No.139 of 2013 under Section 364A and
       302 of the Indian Penal Code, 18603 against the accused namely,
       P. Manikandan,4 wherein it was alleged that the appellant kidnapped
       the 4-year-old child from Gandhi International Matriculation School,
       Manglam by using his motorcycle and after murdering her, threw
       away the dead body in Well.
4.     The background facts in which the present appeal has arisen are:
       4.1 The father of the deceased, namely Paramasivam,5 and the
           appellant were known to each other. The appellant borrowed
           a sum of Rs. 5,00,000/- from the complainant due to losses
           incurred in his brick making business and he failed to return
           the money despite repeated demands from the complainant
           for repayment. The Complainant and his wife, Usha, had
           a daughter,6 who was 4 years old and studied at Gandhi
           International Matriculation School, Manglam.7 The deceased
           child was regularly taken to school by one Chandrasekar, the
           van driver and in his absence, the appellant sometimes would
           take the deceased child to and from the school. On 13th June
           2013, at about 01.30PM the deceased child was found to be
           missing from school. Allegedly, the father of the deceased
           informed the appellant about the same and requested his
           assistance in confirming her whereabouts. It was alleged that
           the appellant arrived at the location after a delay of two hours,
           pretending to be involved in the search for the deceased child,
           but being unable to locate her, subsequently, a complaint was
           filed at the Mangalam Police Station.
       4.2 About a week later, the villagers informed the complainant
           about a body floating in a well at Aarpakkam and the same was


2    hereinafter referred to as the “POCSO Act”,
3    hereinafter referred to as ‘IPC’
4    hereinafter referred to as the “Appellant”
5    hereinafter referred to as “Complainant”
6    hereinafter referred to as the “Deceased child”
7    hereinafter referred to as the “School”
1558                                                        [2024] 12 S.C.R.

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              later identified as that of his daughter. On 19th June 2013, the
              Complainant filed a complaint, which was registered as Crime
              No.139 of 2013, initially recorded under the head of ‘Child
              Missing’; the case was later reclassified to include charges
              of kidnapping for ransom and murder. It was alleged that on
              13th June 2013, the appellant kidnapped the deceased child
              from School, using his Hero Honda Splendor Motorcycle Plus
              bearing registration no. TN25-L-2391 and after murdering her,
              he disposed of her body in the well.
      4.3 Thereafter, after completion of the investigation, the Mangalam
          Police Station, filed chargesheet on 28th November 2013 before
          the Learned Judicial Magistrate Court–II, Thiruvannamalai, who
          took cognizance thereof and assigned PRC No.51 of 2013, and
          committed the case to the Learned Fast Track Mahila Court,
          Thiruvannamalai,8 where SC No. 102 of 2015 was assigned.
      4.4 In order to prove the guilt of the accused, the prosecution
          examined witnesses PWs 1 to 20 and exhibited P-1 to P-16
          and M.O. 1 to M.O. 8. Upon consideration of evidence, the Trial
          Court, vide judgment dated 31st January 2018, on the basis of
          the last seen theory held that the appellant was guilty for the
          offence punishable under Section 364A and 302 of the IPC.
          Sentence awarded to the appellant was life imprisonment and
          fine of Rs. 5,000/- for the offence under Section 304A IPC and
          death penalty for the offence under Section 302 IPC subject to
          the confirmation by the High Court of Madras. As required by
          the statute, the judgment was referred to a Division Bench of
          the High Court for confirmation of death sentence in Referred
          Trial No.2 of 2018. Being aggrieved by the conviction and
          sentence imposed upon him, the appellant preferred Criminal
          Appeal No.102 of 2018 before the High Court.
      4.5 On 24th July 2018, the High Court, after considering the evidence
          on record, set aside the order of the Trial Court and came to the
          conclusion that the prosecution had failed to establish the guilt
          of the appellant beyond all reasonable doubts; therefore, held
          that the appellant is entitled to the acquittal of all charges. The
          High Court further directed the transfer of all relevant documents


8   hereinafter referred to as the “Trial Court”
[2024] 12 S.C.R.                                                         1559

         P. Manikandan v. Central Bureau of Investigation and Ors.


               to the Central Bureau of Investigation, 9 Chennai, with the
               direction to conduct a de-novo investigation and submit a final
               report within three months. The High Court further directed that
               if the investigation reveals or confirms the involvement of the
               appellant, the prosecution may proceed against the appellant
               in accordance with law.
5.     Subsequently, CBI re-registered the case on 18th January 2019,
       bearing FIR No.R.C.1/(S) of 2019 and after completion of the
       investigation, CBI filed chargesheet dated 25th August 2020 bearing
       Chargesheet No.2 of 2020 under Section 173 of Cr.P.C. against the
       appellant for the commission of offence under Sections 364 and 302
       of IPC in Special S.C No.42 of 2021 before Special Court for the
       trial of cases under POCSO Act, Tiruvannamalai, Tamil Nadu, by
       confirming the role of the appellant with regard to the commission
       of offence of kidnapping of the deceased child.
6.     In the year 2023, appellant preferred Crl.O.P.No.5826 before the
       High Court of Judicature at Madras under Section 482 of the Cr.P.C
       seeking quashing of the chargesheet/final report No.2 of 2020 and
       the pending proceeding of Special SC No.42 of 2021 on the ground
       that once the appellant was tried by the Trial Court for an offence
       and the appellate court acquitted the appellant of all charges, the
       Court cannot order such acquitted person to be tried again for the
       same offence on the same set of facts, after re-investigation.
7.     Resultantly, the High Court vide judgment and order dated 4th July,
       2023 while dismissing the CRL.O.P.No.5826 of 2023, directed the Trial
       Court to complete the trial and pass judgment, within a period of 30
       days from the date of this order, without being influenced by any of
       the observations either made in the order under Section 482 Cr.P.C
       or in the order passed by the Division Bench in the Criminal Appeal
8.     The High Court vide the impugned order, after considering the
       contentions of the parties, gave the following findings while dismissing
       the Criminal Petition:
       (i)     While considering the issue “whether the facts of the case
               attracts Section 300(i) of Cr.P.C?”, the High Court concluded
               that the Division Bench rightly directed the CBI to conduct a


9    hereinafter referred to as “CBI”.
1560                                                           [2024] 12 S.C.R.

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             de novo investigation. The said order was not challenged by
             the accused; he submitted himself to the trial. Having realized
             that the trial is proceeding against him, the petitioner (appellant
             herein) has filed the present petition on the baseless claim
             that Section 300 Cr.P.C. offers him protection, which, in fact,
             it does not.
      (ii)   While relying on the decision of this Court in Satyajit Banerjee
             and Ors v. State of West of Bengal and Ors.,10 Ajay Kumar
             Ghoshal and Ors v. State of Bihar and Anr.,11 following
             Zahira Habibulla H. Sheikh v. State of Gujarat12 (well known
             as the ‘Best Bakery’ case), on the point that the Appellate court
             has power under Section 386(b)(i) of Cr.P.C. to order retrial/
             de novo trial if, it is satisfied that the omission or irregularities
             has caused miscarriage of justice.
      (iii) Section 300 (i) of Cr.P.C., qualified the protection only in case
            the order of conviction or acquittal remains in force. Bare perusal
            of the Sub Sections (2) to (5) of Section 300 of Cr.P.C., makes
            it clear that explanation of “autrefois acquit”, is not absolute but
            subject to conditions and held that the acquittal in previous trial
            with a direction for re-investigation is not an acquittal in force.
9.    This order rejecting the appellant’s quashing petition is assailed before
      this Court. Although questioned here is this order, challenge has also
      been laid to the direction to conduct de novo investigation to CBI.
      Learned counsel appearing on behalf of the appellant submitted that:
      (i)    Article 20 (2) of the Constitution of India explicitly stipulates
             that no person shall be prosecuted or punished for the same
             offence more than once, as the appellant has previously been
             acquitted on the same facts and for the same offence and,
             therefore, subsequent prosecution in impermissible;
      (ii)   This protection against double jeopardy is further reinforced
             by the statutory provisions, including Section 300 of Cr.P.C.,
             Section 40 of the Evidence Act, 1872, Section 71 of IPC and
             Section 26 of the General Clauses Act, 1897.


10   (2015) 1 SCC 115
11   (2017) 12 SCC 699
12   (2004) 4 SCC 158
[2024] 12 S.C.R.                                                          1561

        P. Manikandan v. Central Bureau of Investigation and Ors.


      (iii) Power under Section 386(b) of the Cr.P.C. does not include
            the power to direct de novo investigation in case of an appeal
            against conviction.
      (iv) It was further submitted that an acquittal may be characterized
           as ‘honorable’ when, after a thorough examination of the
           prosecution’s evidence, the court determines that the prosecution
           has entirely failed to substantiate the charges brought against
           the accused. In such circumstances, it may be inferred that
           the accused has been acquitted in a manner that implies full
           exoneration from blame.
      (v)    In furtherance of the submissions, the learned counsel for appellant
             relied upon various decisions of this court viz. T.P. Gopalkrishnan
             v. State of Kerala,13 Subrata Choudhury alias Santosh
             Choudhury and Ors. v. State of Assam & Anr.,14 Amandeep
             Singh Saran v. State of Chhattisgarh,15 Deputy Inspector
             General of Police V. S. Samuthiram,16 Union Territory,
             Chandigarh Administration & Ors. v. Pradeep Kumar & Anr.,
             Ajay Kumar Ghoshal & Ors. v. State of Bihar & Anr..17
10. The stand of the respondent/CBI as reflected from record is as under:
      (i)    It was stated that the acquittal or discharge of the appellant was
             not based on the merits of the case. The acquittal order passed
             by the High Court does not have the effect of the final acquittal,
             as the appellate proceedings did not result in a determination
             by affirming the conviction or an acquittal on merits. The
             proceedings constitute a continuation of the trial against the
             appellant. Accordingly, the principle of double jeopardy under
             Article 20 (2) of the Constitution of India and Section 300 of
             Cr.P.C. does not apply.
      (ii)   The circumstances of this case do not meet the condition
             provided under Section 300 of Cr.P.C., in order to comply with
             the provision under Section 300 of Cr.P.C, the previous trial
             must pertain to the same offence and the same charges, and


13   (2022)14 SCC 323
14   2024 SCC Online SC 3126
15   (2024) 6 SCC 541
16   (2013) 1 SCC 598
17   (2017) 12 SCC 699
1562                                                         [2024] 12 S.C.R.

                           Supreme Court Reports


             the resulting order of conviction or acquittal must be final and
             in force. The protection against double jeopardy, known as
             “autrefois acquit,” provided under Section 300, is not absolute
             and is subject to the conditions specified in Sub-sections (2)
             to (5) of Section 300 CrPC.
      (iii) Given the specific circumstances of the case, the accused
            can be retried for the same offence, as the previous trial has
            been annulled. Consequently, there is no subsisting acquittal
            or conviction in effect.
      (iv) Further it was stated that the High Court has the power under
           Section 368 of Cr.P.C to order a new trial on the same offence
           or amend the charges and the Appellate Court has the power
           under Section 386 of Cr.P.C, in pursuance of the decisions laid
           down in Ajay Kumar Ghoshal & Ors. v. State of Bihar & Anr.,18
           Ukha Kolhe v. State of Maharashtra,19 Mohd. Hussain v.
           State (Govt. of NCT of Delhi).20 Additionally, it was stated
           that the High Court has the power to order re-investigation
           while relying on the judgment of this court in Devendra Nath
           Singh v. State of Bihar.21
      (v)    That the appellant did not avail the remedy of approaching the
             High Court or this Court upon receiving summons from the Chief
             Judicial Magistrate, Chengalpattu, or during the initial stages
             of the trial proceedings. It was further stated that the appellant
             approached the High Court only subsequent to the examination
             of 34 prosecution witnesses and after the completion of the
             chief examination of the concerned Investigating Officer, at that
             stage the appellant was fully aware that sufficient evidence had
             been adduced to sustain a conviction against him.
11. We have heard the learned counsel for the parties. The issues which
    arise for the consideration before this court are:
      (i)    Whether the High Court was justified in directing re-investigation
             and retrial of the same offence on the same set of facts, after



18   (2017) 12 SCC 699
19   (1964) 1 SCR 926
20   (2012) 9 SCC 408
21   (2023) 1 SCC 48
[2024] 12 S.C.R.                                                           1563

       P. Manikandan v. Central Bureau of Investigation and Ors.


            acquitting the accused by giving him the benefit of doubt? In
            other words, when considering an appeal against conviction
            under Section 386(b)(i) of Cr.P.C., is the High Court empowered
            to direct re-investigation, if yes, then could such a direction be
            given while acquitting the accused, in the very same order;
     (ii)   Whether, in the attending fact and circumstances, the de novo
            investigation violated the principle of double jeopardy and the
            appellant’s right under Article 20(ii) of the Constitution of India
            and Section 300 of the Cr.P.C.
12. In the present case, the High Court acquitted the appellant and
    directed to transfer the documents and relevant material to conduct
    the de novo investigation before CBI on the same facts for the same
    offences and to proceed against the appellant in accordance with
    law, by exercising the power under Section 386 of Cr.P.C.
13. The power of the Appellate Court as described under Section 386
    of Cr.P.C is extracted below:
            “386. 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 of 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;
            b.   in an appeal from a conviction
                 (i)    reverse the finding and sentence and acquit
                        or discharge the accused, or order him to be
                        re-tried by a Court of competent jurisdiction
                        subordinate to such Appellate Court or
                        committed for trial, or
                 (ii)   alter the finding, maintaining the sentence, or
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                    (iii) with or without altering the finding, alter the nature
                          or the extent, or the nature and extent, of the
                          sentence, but not so as to enhance the same;
              c.    in an appeal for enhancement of sentence
                    (i)    reverse the finding and sentence and acquit or
                           discharge the accused or order him to be re-
                           tried by a Court competent to try the offence, or
                    (ii)   alter the finding maintaining the sentence, or
                    (iii) with or without altering the finding, alter the nature
                          or the extent, or the nature and extent, of the
                          sentence, so as to enhance or reduce the same;
              d.    in an appeal from any other order, alter or reverse
                    such order;
              e.    make any amendment or any consequential or
                    incidental order that may be just or proper;
              Provided that the sentence shall not be enhanced unless
              the accused has had an opportunity of showing cause
              against such enhancement;
              Provided further that the Appellate Court shall not inflict
              greater punishment for the offence which in its opinion the
              accused has committed, than might have been inflicted for
              that offence by the Court passing the order or sentence
              under appeal.”
                                                        (Emphasis supplied)

14.     Section 386 (b) of Cr.P.C. enumerates power of the Appellate Court
       which inter alia includes the power to order the appellant to be
       retried by the competent authority or committed for trial in case of
       appeal from a conviction. This court in several decisions deals with
       the power of Appellate Court to direct a re-trial.
15. The Constitution Bench, while dealing with such an issue, that when
    such power should be exercised by the Appellate Court in Ukha
    Kolhe v. State of Maharashtra,22 observed that:


22    AIR 1963 SC 1531
[2024] 12 S.C.R.                                                            1565

       P. Manikandan v. Central Bureau of Investigation and Ors.


          “11. An order for retrial of a criminal case is made in
          exceptional cases, and not unless the appellate court
          is satisfied that the Court trying the proceeding had no
          jurisdiction to try it or that the trial was vitiated by serious
          illegalities or irregularities or on account of misconception
          of the nature of the proceedings and on that account in
          substance there had been no real trial or that the Prosecutor
          or an accused was, for reasons over which he had no
          control, prevented from leading or tendering evidence
          material to the charge, and in the interests of justice the
          appellate court deems it appropriate, having regard to the
          circumstances of the case, that the accused should be put
          on his trial again. An order of re-trial wipes out from the
          record the earlier proceeding, and exposes the person
          accused to another trial which affords the prosecutor an
          opportunity to rectify the infirmities disclosed in the earlier
          trial, and will not ordinarily be countenanced when it is
          made merely to enable the prosecutor to lead evidence
          which he could but has not cared to lead either on account
          of insufficient appreciation of the nature of the case or for
          other reasons. ”
                                                  (Emphasis supplied)

16. In the “Best Bakery Case”, wherein the Trial Court directed the
    acquittal of the accused person in a case of mass killings, the same
    was upheld by the High Court of Gujarat while dismissing the criminal
    appeal, this Court, after considering the facts and circumstances
    of the case, directed the de novo trial of the accused person by
    observing that:
          “73. … We are satisfied that it is a fit and proper case,
          in the background of the nature of additional evidence
          sought to be adduced and the perfunctory manner of trial
          conducted on the basis of tainted investigation a retrial is a
          must and essentially called for in order to save and preserve
          the justice-delivery system unsullied and unscathed by
          vested interests. We should not be understood to have
          held that whenever additional evidence is accepted, retrial
          is a necessary corollary. The case on hand is without
          parallel and comparison to any of the cases where even
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             such grievances were sought to be made. It stands on its
             own as an exemplary one, special of its kind, necessary
             to prevent its recurrence. It is normally for the appellate
             court to decide whether the adjudication itself by taking
             into account the additional evidence would be proper or
             it would be appropriate to direct a fresh trial, though, on
             the facts of this case, the direction for retrial becomes
             inevitable.”
17. A Three Judge Bench of this Court in Mohd. Hussain v. State (Govt.
    of NCT of Delhi),23 held that:
             41. The appellate court hearing a criminal appeal from
             a judgment of conviction has power to order the retrial
             of the accused under Section 386 of the Code. That is
             clear from the bare language of Section 386(b). Though
             such power exists, it should not be exercised in a routine
             manner. A de novo trial or retrial of the accused should
             be ordered by the appellate court in exceptional and rare
             cases and only when in the opinion of the appellate court
             such course becomes indispensable to avert failure of
             justice. Surely this power cannot be used to allow the
             prosecution to improve upon its case or fill up the lacuna.
             A retrial is not the second trial; it is continuation of the
             same trial and same prosecution. The guiding factor for
             retrial must always be demand of justice. Obviously, the
             exercise of power of retrial under Section 386(b) of the
             Code, will depend on the facts and circumstances of each
             case for which no straitjacket formula can be formulated
             but the appeal court must closely keep in view that while
             protecting the right of an accused to fair trial and due
             process, the people who seek protection of law do not
             lose hope in legal system and the interests of the society
             are not altogether overlooked.
                                                   (Emphasis supplied)

18. While relying upon the decision of the Constitution Bench in Ukha
    Kolhe (supra), this court discussed the scope of Section 386 of


23   (2012) 9 SCC 408
[2024] 12 S.C.R.                                                               1567

        P. Manikandan v. Central Bureau of Investigation and Ors.


      Cr.P.C in Ajay Kumar Ghoshal v. State of Bihar,24 to the effect that:
             “10. Section 386 CrPC deals with the powers of the
             appellate court. As per Section 386(b) CrPC in an appeal
             from a conviction, the appellate court may : (i) reverse the
             finding and sentence and acquit or discharge the accused,
             or order him to be retried by a court of competent jurisdiction
             subordinate to such appellate court or committed for trial,
             or (ii) alter the finding, maintaining the sentence, or (iii)
             with or without altering the finding, alter the nature or the
             extent, or the nature and extent, of the sentence, but not
             so as to enhance the same.
             11. Though the word “retrial” is used under Section 386(b)
             (i) CrPC, the powers conferred by this clause is to be
             exercised only in exceptional cases, where the appellate
             court is satisfied that the omission or irregularity has
             occasioned in failure of justice. The circumstances that
             should exist for warranting a retrial must be such that where
             the trial was undertaken by the court having no jurisdiction,
             or trial was vitiated by serious illegality or irregularity on
             account of the misconception of nature of proceedings.
             An order for retrial may be passed in cases where the
             original trial has not been satisfactory for some particular
             reasons such as wrong admission or wrong rejection of
             evidences or the court refused to hear certain witnesses
             who were supposed to be heard.
             12. “De novo” trial means a “new trial” ordered by an
             appellate court in exceptional cases when the original trial
             failed to make a determination in a manner dictated by law.
             The trial is conducted afresh by the court as if there had not
             been a trial in first instance. Undoubtedly, the appellate court
             has power to direct the lower court to hold “de novo” trial.
             But the question is when such power should be exercised…”
                                                     (Emphasis supplied)

19. This court in Nasib Singh v. State of Punjab,25 formulated the principles
    emerging from several decisions on retrial given by this Court:


24   (2017) 12 SCC 699
25   (2022) 2 SCC 89
1568                                                        [2024] 12 S.C.R.

                         Supreme Court Reports


          33. The principles that emerge from the decisions of this
          Court on retrial can be formulated as under:
          33.1. The appellate court may direct a retrial only in
          “exceptional” circumstances to avert a miscarriage of justice.
          33.2. Mere lapses in the investigation are not sufficient
          to warrant a direction for retrial. Only if the lapses are so
          grave so as to prejudice the rights of the parties, can a
          retrial be directed.
          33.3. A determination of whether a “shoddy” investigation/
          trial has prejudiced the party, must be based on the facts of
          each case pursuant to a thorough reading of the evidence.
          33.4. It is not sufficient if the accused/prosecution makes
          a facial argument that there has been a miscarriage of
          justice warranting a retrial. It is incumbent on the appellate
          court directing a retrial to provide a reasoned order on the
          nature of the miscarriage of justice caused with reference
          to the evidence and investigatory process.
          33.5. If a matter is directed for retrial, the evidence and
          record of the previous trial is completely wiped out.
          33.6. The following are some instances, not intended to
          be exhaustive, of when the Court could order a retrial on
          the ground of miscarriage of justice:
          (a) The trial court has proceeded with the trial in the
          absence of jurisdiction;
          (b) The trial has been vitiated by an illegality or irregularity
          based on a misconception of the nature of the proceedings;
          and
          (c) The prosecutor has been disabled or prevented from
          adducing evidence as regards the nature of the charge,
          resulting in the trial being rendered a farce, sham or charade.
                                                  (Emphasis supplied)

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.                                                            1569

        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


26   (2012) 2 SCC 34
1570                                                          [2024] 12 S.C.R.

                            Supreme Court Reports


             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 Ali 27 it has been observed


27   (2013) 5 SCC 762
[2024] 12 S.C.R.                                                            1571

        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


28   (2010) 3 SCC 571
1572                                                           [2024] 12 S.C.R.

                               Supreme Court Reports


                   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.


29   2024 SCC Online SC 2448
[2024] 12 S.C.R.                                                       1573

       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                                                  [2024] 12 S.C.R.

                      Supreme Court Reports


        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.                                                          1575

        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.



30   (1953) 1 SCC 736
1576                                                          [2024] 12 S.C.R.

                            Supreme Court Reports


             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”.


31   (1954) 1 SCC 586
[2024] 12 S.C.R.                                                           1577

       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                                                         [2024] 12 S.C.R.

                           Supreme Court Reports


      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


32   (2022) 14 SCC 323
33   (1999) 5 SCC 253
34   (2011) 1 SCC 284
[2024] 12 S.C.R.                                                          1579

        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



35   (2012) 7 SCC 621
1580                                                      [2024] 12 S.C.R.

                            Supreme Court Reports


     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.



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         Headnotes prepared by: Ankit Gyan