Protecting companies against double jeopardy

Amit K Vyas

Our Constitution has, vide Article 20(2), stipulated that no person shall be prosecuted and punished for the same offence more than once. This is the doctrine of protection against double jeopardy which has been given practical shape by the provisions of Section 300 of the Criminal Procedure Code 1973 (CrPC). This Section stipulates that “a person who has once been tried for an offence by a court of competent jurisdiction for an offence and convicted or acquitted of such an 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 subsection (2) thereof”.

The said sub-sections (1) and (2) of Section 221 stipulate that where a person has committed an offence and is charged for the same, but subsequently evidence is furnished to the court which establishes that he has committed any other offence, he can be convicted for the same though he was not charged in respect thereof.

The prohibition under Section 300 of the CrPC shall, however, not apply where either approval of the government is taken or where a person is convicted for any offence constituted by any act causing consequences which together with such act constituted a different offence from that he was convicted provided that such consequences had not happened at the time of conviction or the court was not aware of the same. For example, a person is charged with theft and subsequently acquitted. Such a person cannot then be charged with theft or criminal breach of trust on the basis of the same facts.

This prohibition of Section 300 was relied upon by a company convicted for offences under the Companies Act 1956 (the Act) relating to acceptance of deposits in the case of Bharat Plywood and Timber Products (P) Ltd vs RoC, Kochi and Another (2001) 4 Comp LJ (Ker). In this particular case, a company A was proceeded against by the Registrar of Companies (RoC) on the ground of violation of Sections 58A(5)(a) and( b) and 58A(6)(a)and (b) of the Act in view of the fact that it had exceed the limits prescribed for the acceptance of deposits and had also failed to repay the deposits within the prescribed time period.

The contention of company A was that it had already been proceeded against and convicted for violation of rules 3A and 4A of the Companies (Acceptance of Deposits) Rules 1975 owing to its act of accepting deposits without issuing advertisements and without conforming to the liquidity requirements as required by the said rules. The company contended that the new prosecution was barred by Section 300 of the CrPC.

The High Court held in this case that for Section 300 of the CrPC to be attracted it was necessary that the evidence necessary to support the second accusation would have been sufficient to support the first accusation also or in other words where the evidence in the first case also supported the conviction for the offence in the second case. In this case the offences of non-adherence to the limits for the acceptance of deposits and non-payment of deposits within the prescribed time period were facts which were not necessary to sustain the offences under rules 3A and 4A i.e., the previous offences. Thus, the HC held that Section 300 had no application to the case.

The provisions of Section 300 of the CrPC must be kept in mind by the RoC while proceeding against a company for violations of the Companies Act 1956, otherwise the prosecution will simply fail.
Consider a case where a company has failed to file forms 29 and 32 within 30 days of the appointment of a Director and the RoC proceeds only on the basis of default in respect of failure to file form 32. The company is convicted by the court and then the RoC tries to proceed on the ground of violation in filing form 29. Both the offences are based on the same fact i.e., appointment of a director and the Act requires filing of the said forms within 30 days of the appointment of such a director. In such a case the second prosecution will fail on account of Section 300 of the CrPC.

— The writer is a company secretary