Right Against Double Jeopardy: India

Introduction
The word ‘Double’ stands for twice and the term "Jeopardy" refers to the "danger" of
punishment which is endorsed to any individual brought to trial before a court of competent
jurisdiction. Jeopardy cannot be constitute in any procedural matters, and that's why it's said that
jeopardy attaches, or may be asserted by the defendant, once a jury has started the proceedings,
or the first witness takes the stand, in any original prosecution resulting in any acquittal or
conviction. No to be punished for the same offence is a defense (and, in many countries such as
the United States, Canada, Mexico, Japan and India, a constitutional right) that forbids a
defendant from being tried a second time for the same offence.
The ancestry of the doctrine against double jeopardy are to be found in the well- established
maxim of the English Common law, Nemo debet bis vexari, meaning that a man must not be put
twice in peril for the same offence.1 When a person has been convicted for an offence by a
competent court, the conviction serves as a bar to any further criminal proceeding against him
for the same offence. The idea is that no one ought to be punished twice for one and the same
offence. If a person is indicated again for the same offence in a court, ha can take the plea
of autrefois acquit or autrefois convict.
The concept of double jeopardy is one of the oldest in Western civilization. In 355 B. C.
Athenian statesmen Demosthenes said that the "law forbids the same man to be tried twice on the
same issue." The Romans codified this principle in the Digest of Justinian in 533 A. D. The
principle also survived the Dark Ages (400-1066 A.D.) through the CANON LAW and the
teachings of early Christian writers, notwithstanding the deterioration of other Greco-Roman
legal traditions.2
The principle was inexistence in India even prior to the commencement of the Constitution, but
the right against double jeopardy has been given the status of constitutional, rather than a mere
statutory, guarantee. Double Jeopardy is documented in different countries like United

1
P.K.Majumdar and Kataria R.P, Commentary on the Constitution of India, 10 th Edition, Orient Publication
company, Page no. 897
2
http://www.enotes.com/criminal-law-reference/double-jeopardy assessed on 20th of September, 2012
States, United Kingdom, Canada, Germany, France, Japan, India etc. Further, double jeopardy is
discussed in accordance with Constitutions of different countries.
It is a fundamental principle of the common law that a person cannot be put in jeopardy twice for
the same offence. Almost all common law countries incorporate this protection in their laws.
While some countries have found it necessary to be included in their constitutions, others have
incorporated it in their statutes. All agree that the protection has its origin in the English common
law of the eighteenth century. Though its origin is thus common, it is found that its reception and
implementation have been different.

In India
In India, protection against double jeopardy is a Fundamental Right guaranteed under Article 20
of the Constitution of India.
An article 20(2) of Indian Constitution state that “No person shall be prosecuted and punished for the
same offence more than once” contains the rule against double jeopardy.”3 The Indian
Constitution guarantees to the people certain basic human rights and freedoms, such as inter alia,
equal protection of laws, freedom of speech and expression, freedom of worship and religion,
freedom of assembly and association, freedom to move freely and to reside and settle anywhere
in India, freedom to follow any occupation, trade or business, freedom of person, freedom,
against double jeopardy and against ex post facto laws.
Not to be “punished for the same offence more than once”. The Right against Double jeopardy is
a fundamental right of every citizen of India which is assured in Article 20(2) of the Constitution
of India enunciates the principle of “autrefois convict” or “double jeopardy”. The principle
which is sought to be incorporated into section 300 of the Criminal Procedure Code (CrPC) is
that no man should be vexed with more than one trial for the offences arising out of same act
committed by him.4 Though article 20(2) of the Indian Constitution 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 the section 300 of the CrPC. If there is no punishment for the
offence as a result of the prosecution, article 20(2) has no application. While the clause embodies

3
Dr. Subash C. Kashyap, Constitutional Law of India, 1 st edition Volume-1, Universal law publishing company
Page Number-649
4
P.K.Majumdar and Kataria R.P., Commentary on the Constitution of India, 10th Edition, Orient Publication
company, Page no. 919
the principle of autrefois convict, section 300 of the CrPC combines both autrefois convict and
autrefois acquit.5

In United States

The DOUBLE JEOPARDY clause in the Fifth Amendment to the U. S. Constitution prohibits
the government from prosecuting individuals more than one time for a single offense and from
imposing more than one punishment for a single offense. It provides that "No person shall . . . be
subject for the same offence to be twice put in JEOPARDY of life or limb." The Double
Jeopardy Clause encompasses four distinct prohibitions: subsequent prosecution after acquittal,
subsequent prosecution after conviction, subsequent prosecution after certain mistrials, and
multiple punishments in the same indictment. Jeopardy "attaches" when the jury is empaneled,
the first witness is sworn, or a plea is accepted.i

Right against Double Jeopardy in India

Article 20 (2) of the constitution of India which runs as “No person shall be prosecuted and
punished for the same offence more than once”6 contain the right against Double Jeopardy. The
principle was in existence in India even prior to the commencement of the Constitution, but the
same has now been given the status of a constitutional, rather than a mere statutory gurantee.
Both Prosecution and Punishment should co-exist for Article 20 (2) to be operative. A
prosecution without punishment would not bring the case within Art 20 (2). If a person has been
prosecuted for an offence but acquitted, then he can be again prosecuted and punished for the
same offence.
Example- If a person was prosecuted and punished under Section 497 Indian penal Code, 1860.
On appeal, the High Court quashed the trial holding it void ab- initio as no sanction for the same
had been obtained under the law. Art 20 (2) would not bar a second trial for the same offence, as
the accused had not been prosecuted and punished for the offence. But in the same example if he
was prosecuted and punished then Article 20(2) will come into effect and saves the person from
any second prosecution for the same offence. Therefore, Prosecution and Punishment both
should be present in the first trial in order to attract Article 20(2) in the second trial for the same
offence.
Rule of Autrefois Acquit
It is a fundamental principle of the common law that a person cannot be put in jeopardy twice for
the same offence which works on well established maxim, “Nemo debet bis Vexari”. The
principle has been recognized in the existing law in India and is enacted in Section 26 of the
General Clauses Act, 1897 states that, “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.” and Section 300 of Criminal Procedure Code, 1973 states,
(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 offence, if the consequences had not happened.
(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 or of Section 188 of CrPC.
The rule in Indian Constitution is different, In order to bring the case of a person within the
prohibition of Article 20(2) it must shown that he had been “prosecuted” before a court and
“punished” by it for the “same offence” for which he is prosecuted again. Accordingly, there can
be no constitutional bar to a second prosecution and punishment for the same offence unless the
accused had already been punished in the first instance. The Supreme Court said: “If there is no
punishment for the offence as a result of the prosecution, sub-clause (2) of the Article20 has no
application.”

Three essentials of Right against Double Jeopardy are:

a) There must be a person accused of an offence. The word “offence” is described in the
General Clause Act, 1897 which read as, “an act or omission made punishable by any law
for the time being in force”.
b) The proceedings should have been taken before a court or Judicial tribunal. Proceedings
before tribunal which entertains departmental or administering enquires cannot be
considered as proceedings in connection with prosecution and punishment. The revenue
authorities, like sea customs authorities are not Judicial tribunal.
c) The proceedings should have been taken before the judicial tribunal or court in reference
to the law which creates offences. Thus, where an enquiry is held before a statutory
authority against a government servant, not for the purposes of punishing for the offence
of cheating and corruption but to advise the government as to the disciplinary action to be
taken against him, it cannot be said that the person has been prosecuted. It would make
no difference even if the enquiry is required to act judicially.7

7
www.scribd.com/doc/22365461/constitution-double-jeopardy assessed on 22nd September, 2012
Conclusion

The crucial requirement for attracting article 20(2) of the Indian Constitution is that the offences
are the same, i.e., they should be identical. It is, therefore, necessary to analyze and compare not
the allegations in the two complaints but the ingredients of the two offences and see whether
their identity is made out. The test to ascertain whether two offences are the same is not the
identity of the allegations but the identity of the ingredients of the offences.

The principle which is sought to be incorporated into section 300 of the Criminal Procedure
Code (CrPC) is that no man should be vexed with more than one trial for the offences arising out
of same act committed by him. Though article 20(2) of the Indian Constitution 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 the section 300 of the CrPC.
By analyzing recent case it can be figure out that Indian Judiciary is taking Right against Double
Jeopardy in very descriptive way. It is clear from the case like Sangeetaben Mahendrabhai Patel
vs. State of Gujarat8 that offences are treated same if the ingredients of the offences are same.
But it is clear that a person cannot be punished twice for even different offences if the facts of
the case are same by the virtue of Section 300(1) of Criminal Procedure Code, 1873. Judiciary
has upheld this section in various cases such as Jayantibhai Nagjibhai Patel v/s State of Gujarat
and Kolla Veera Raghav Rao v/s Gorantla Venkateswara Rao9. Therefore, it can be said that
Right against Double jeopardy is very historical concept which is growing up higher and higher
in present scenario and due to that it has given a constitutional status and that too under the
fundamental rights.

8
(2012) 7 SCC 621
9
http://indiankanoon.org/doc/640825/ assessed on 24th of September, 2012