Contents

Chapter-1 Page
Introduction 2-7
i. Meaning of Jeopardy and double jeopardy. 4
ii. History and origin of this principle. 4
iii. Essentials of Double Jeopardy. 6
iv. Eligibility for Double Jeopardy Protection. 7
Chapter-2
Legislative provisions 8-14
i. Scope of Article 20(3). 8
ii. Double Jeopardy and Res Judicata/ Issue Estoppel. 11
iii. The subsequent position of Law. 12
iv. Comparison with other countries. 12
v. Indian Law and Double Jeopardy. 14
Chapter-3
Legal frames work 15-24
i. Constitutional Implication. 15
ii. Trial In due course of law. 15
iii. Substantive or Procedural Constitutional Right. 18
iv. Hypothesis. 19
v. Trial by jury. 20
vi. Equality In the criminal Justice process. 20
vii. Personal rights against retrials. 22
viii. Multiple punishments for the same criminal offence. 23
ix. An unqualified constitutional right. 24
Chapter-4 29-45
Judicial analysis.
Chapter-5 46
Conclusion.
References. 47

1
 INTRODUCTION
The purpose of this research is to identify the principle of “autrefois convict” called Double
Jeopardy. Double Jeopardy is a legal term and many people are familiar to this term & its
definition that a person cannot punished for the same offence more than once. But this project
highlights those questions, which may arise in the mind of the readers, when they are
discussing about Double Jeopardy. Because these questions clicked to my mind too and I
thought that, is there more to know about Double Jeopardy than not to punish for the same
offence more than once? What are the exceptions of the rule of Double Jeopardy? And also,
can an accused be actually punished twice for the same offence in India? Fundamental right
which is guaranteed under Article 20(2) of Constitution of India incorporates the principles of
“autrefois convict” or Double jeopardy which means that person must not be punished twice
for the offence. Doctrine against Double Jeopardy embodies in English common law’s maxim
‘nemo debet bis vexari, si constat curice quod sit pro una iti eadem causa” (no man shall be
punished twice, if it appears to the court that it is for one and the same cause). It also follows
the “audi alterum partem rule” which means that no person can be punished for the same
offence more than ones. And if a person is punished twice for the same offence it is termed
Double jeopardy.
The principle of double jeopardy operates as a proscription against retrials for the same
criminal offence following a trial on the merits by a court of competent criminal jurisdiction
concluding in an acquittal or conviction. The principle developed at common law in response
to the draconian punishments traditionally
Imposed on defendants and the decencies in medieval criminal procedure to the advantage of
The prosecution. The common law immunity from prosecution gradually developed in
response to the injustice in permitting retrials for the same offence following an acquittal or
conviction. The principle was also designed to prevent the imposition of multiple
punishments for the same criminal Transgression in separate proceedings. Typically this would
include proceedings for the consecration of criminal assets and the proceeds of crime,
professional Disciplinary proceedings, and occasionally the sentencing process. The common
law principle against double jeopardy is a fundamental right of the accused in accordance with
the rule of law. With the exception of the United Kingdom and Australia, this fundamental
principle of criminal justice and procedure has been elevated to constitutional status in most
common law jurisdictions including the United States, Canada, New Zealand, India, and South
Africa.

2
The principle included in most European constitutions and also in several international
conventions, where it is known as the principle of ne bias in idem. The Irish Constitution does
not include an express provision against double jeopardy and therefore the constitutional status
of the protection against retrials in this jurisdiction is uncertain. Liberal democratic states
provide for fundamental rights by virtue of a constitution or bill of rights, the interpretation
of which is a fundamental part of the legal process. The superior courts are vested with the
task of identifying the intent of the framers (original authors) of the Constitution as to the
meaning and extent of individual provisions, which may be over time. Thus, certain rights
may be implied in accordance with express constitutional provisions as determined by the
superior courts. There are many fundamental constitutional rights of the accused in the
criminal justice process, which undoubtedly include the common law immunity against
retrials. This article evaluates the constitutional status of the common law principle against
retrials, generally referred to as “the rule against double jeopardy.” It examines the most
relevant provisions of the Irish Constitution and judicial pronouncements by the superior
courts pertaining to the constitutional status of this fundamental principle of criminal justice.
The right to personal liberty. And fair procedures in the criminal justice process are
undoubtedly pertinent to the constitutional status of the double jeopardy principle. However,
the thesis of this article suggests that the constitutional mandate that trials proceed “in due
course of law” (Article 38.1) is the source of the unremunerated constitutional right against
double jeopardy. In view of recent statutory reforms in the United Kingdom, New South
Wales, and Queensland, it is reasonable to assume that the double jeopardy principle will be
reviewed in this jurisdiction in due course. Double jeopardy law reform in the United Kingdom
has been the model for reform in other common law jurisdictions. The spur to reform in the
United Kingdom was the failed prosecution of have youths alleged to have murdered Stephen
Lawrence in 1993. The accused were acquitted principally because of police incompetence in
the investigation of the murder and the ineffective prosecution of the case by the prosecuting
authorities. As a consequence of this case, the then Home Secretary, Mr. Jack Straw MP,
established the Macpherson Inquiry, to review the police investigation, alleged institutional
racism, and the failed prosecution of the case.
The report of the Macpherson Inquiry produced many recommendations including the
proposed reform of the common law principle against double jeopardy in circumstances
where fresh and viable evidence of an accused’s guilt is discovered following an acquittal.
The Law Commission subsequently published a Consultation Paper and Report, which
reviewed the common law double jeopardy principle. Part 10 of the Criminal Justice Act 2003
modified the law in the United Kingdom with the result that an acquittal may be reviewed by
the Court of Appeal (Criminal Division) in view of fresh and compelling evidence of the
accused’s guilt and a retrial ordered for the same offence. Rest acquittal to be challenged was
that of William “Billy” Dunlop, who had formerly been twice tried for murder; in the rest
instance the jury failed to agree on a verdict and he was acquitted following a retrial. The
accused subsequently confessed to the murder to a prison officer in a taped conversation while
serving a seven-year term of imprisonment for a serious assault on another victim. He was
convicted in 2000 for perjury. In 2005, the Crown Prosecution Service referred the case to the

3
Court of Appeal (Criminal Division), which now has the power to quash an acquittal and order
a retrial where there is fresh and compelling evidence of guilt. The accused pleaded guilty to
the murder for which he had been formerly acquitted, and in 2006 was sentenced to life
imprisonment. The dilemma for this jurisdiction is whether the Oireachtas would be
permitted to enact reforming legislation that would make provision for the prosecution
authorities to appeal an acquittal based on fresh and compelling evidence of the accused’s
guilt in order that a retrial could proceed for the same criminal offence.

Meaning of Jeopardy
The word Jeopardy refers to the “danger” of conviction that an accused person is subjected to
when one trial for a criminal offence.

Meaning of Double Jeopardy

The act of putting a person through a second trial of an offence for which he or she has already
been prosecuted or convicted.
This means that if a person is prosecuted or convicted ones cannot be punished again for that
criminal act. And if a person is indicated again for the same offence in the court then he has
the plea of Double Jeopardy as a valid defense.

History and origin of this principle

Judicial and academic statements on the principle that a person should be protected against
double jeopardy tend to either assume or imply unquestioningly the belief that the rule is one
with a long historical background and sound doctrinal foundations.

The principle of double jeopardy was not entirely unknown to the Greeks and Romans,
although the legal environment was quite different. This principle found final expression in
the Digest of Justinian as the precept that “the governor should not permit the same person to
be again accused of a crime of which he had been acquitted. “No statement of the double
jeopardy clause appears in Magna Charta, nor can it be discovered by implication.

During the eighteenth century, the extreme procedure was generally followed. It should be
noted that, in eighteenth century, Blackstone stated thus:

“First, the plea of autrefois acquit, or a former acquittal, is grounded on this universal maxim
of the common law of England, that no man is to be brought into jeopardy of his life for more
than once for the same offence and hence it is allowed as a consequence that when a man is
once fairly found not guilty upon any indictment or other prosecution, before any court having
4
competent jurisdiction of the offence he may plead such acquittal in bar of any subsequent
accusation for the same crime.”

Both the continental and the English systems drew the doctrine of double jeopardy from the
common source of Canon law. The origin of the maxim that, “not even God judges twice for
the same act” was present in church canons as early as 847

The concept of double jeopardy was prevalent in the Roman law in the Justinian Code.

The classical argument for the need of maintaining the rule is apparent in the observation of
the court in Green v. United States. The Court observed thus:

“The underlying idea… is that the State with all its resources and power should not be allowed
to make repeated attempts to convict an individual for an alleged offence, thereby subjecting
him to embarrassment, expense and ordeal and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the possibility that even though innocent he may
be found guilty.”

Blackstone further advanced the doctrine by pronouncing that “the plea of autrefois
acquittal, or a formal acquittal, is grounded on the universal maxim…that no man is to be
brought into jeopardy of his life more than once for the same offence.” A main
distinction between historical doctrine and modern double jeopardy provisions is that the
former only applies to capital crimes. In modern times, double jeopardy is not limited only to
crimes affecting “life or limb” but, rather, applies to all criminal prosecutions and punishments
in which an individual is at risk of multiple attacks on his or her liberty.

In modern times, remnants of double jeopardy exist in many countries, including Australia,
Canada, the United Kingdom, parts of Asia, and the United States. It exists as a constitutional
right is many countries such as United States, Canada, Mexico and India.

The protection is also given under this rule has gained international recognition also through
various international documents, for instance, Article 14(7) of the International Covenant on
Civil and Political Rights, Article 4(1), Protocol 7 to the European Convention of Human
Rights and Article 50 of the Charter of Fundamental Rights of the European Union. The states
are bound to cope with the relevant provisions of the conventions to which they are parties.

5
 Essentials of Double Jeopardy
As it is very clear from the cases mentioned above that one can take the defence of double
jeopardy when one is convicted again for a same crime having same elements of prosecution.
If a person who has been prosecuted based on same facts but in an offence having different
elements of crime, he would not be able to claim a defence under article 20(2) or section 300
of Cr.PC or Section 26 of General Clauses Act, 1897.By now, it is certainly clear that the scope
of Section 300 in Cr.PC is much wider than article 20(2) of Indian Constitution. But, applying
the same principles of Hart’s theory of primary and secondary, it is the constitution in article
20(2) that empowers Section 300 or Cr.PC and section 26 of General Clauses Act. As
mentioned before, the supreme court in Kolla Veera Raghav Rao case has already observed
that the scope of section 300 is wider[26]than article 20(2) and it is important to notice that the
even though section 300 provides wider definition of double Jeopardy, it does also ensures
some protections under Cr.PC. The bare reading of section 300 clarifies that, based on same
facts of a case, a separate charge cannot be framed by prosecution. Also, if the elements of a
crime is same as that to, for which the accused is being prosecuted, the accused cannot be held
guilty or a separate charge cannot be initiated against that person. On the contrary, it is also
important to know that if the elements of an offence are different from which the accused is
being charged, then he will not be able to please defence under section 300 of Cr.PC as it
clearly lays down the condition that a person can be prosecuted based on same facts, if an
offence involve different elements that satisfies different charge under a penal law. Having
said that, it is also important that the matter should be tried by a competent jurisdiction for an
offence. And that authority itself should decide about the conviction or acquittal of an accused.
As it has been discussed in Assistant Collector of Customs v L. R. Malwani1 that the proceeding
before the Sea Customs authorities was not a “prosecution” and the order for confiscation was
not a “punishment” inflicted by a Court or judicial tribunal within the meaning of Art. 20(2)
of the Constitution and hence his subsequent prosecution was not barred.

1
1970 AIR 962, 1969 SCR (2) 438

6
 Eligibility for Double Jeopardy Protection:
Only certain types of criminal cases qualify for double jeopardy protection. If a particular
proceeding does not place an individual in jeopardy, then subsequent proceedings against
that individual for the same conduct are not prohibited. Although the text of the Fifth
Amendment suggests that double jeopardy protection extends only to proceedings
threatening "life or limb," the Supreme Court has established that the right is not limited to
capital crimes or corporeal punishment. Instead, protection extends to all felonies,
misdemeanors, and juvenile delinquency adjudications, regardless of the punishments they
prescribe.

It is not just a question of which proceedings are subject to double jeopardy, but also when
jeopardy begins, or attaches. This question is crucial because actions taken by the
government before jeopardy attaches, such as dismissing the indictment, will not prevent
later proceedings against the same person for the same offense. Once jeopardy has attached,
the full array of Fifth Amendment protections against multiple prosecutions and multiple
punishments takes hold.

For jury trials, jeopardy attaches when the jury is sworn. In criminal cases tried by a judge
without a jury, jeopardy attaches when the first witness is sworn in. If a defendant enters a
plea agreement with the prosecution, jeopardy does not attach until the court accepts the plea.

It is just as important to determine when double jeopardy protection ends as when it begins,
but it can be little more complicated. Once jeopardy has ended, the government cannot detain
someone for additional court proceedings on the same issue.

Jeopardy can terminate in four instances:

1. After a jury’s verdict of acquittal.
2. after a trial court’s dismissal.
3. after a trial court grants a mistrial and
4. On appeal after conviction.

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 Scope of Article 20(3)
The object of this clause is to protect an individual from being subjected to prosecution and
conviction more than once for the same offence. The ambit of Article 20(3) is narrower than
the English or the American rule against double jeopardy. The Indian provision enunciates
only the principle of autrefois acquit. In Britain and in U.S.A., both these rules operate and a
second trial is barred even when the accused has been acquitted at the first trial for that offence.
In India, however, Article 20(2) may be invoked only if when there has been a prosecution and
punishment in the first instance.

In the case of Kalawati v State of Himachal Pradesh2 a person accused of committing murder
was tried and acquitted. The State preferred an appeal against the acquittal. The accused could
not plead Article 20(2) against the State preferring an appeal against the acquittal. Article 20(2)
would not apply as there was no punishment for the offence at the earlier prosecution: and an
appeal against an acquittal was in substance a continuation of the prosecution.

Where there are two distinct offences made up of different ingredients, embargo under Article
20(2) or Section 26 General Clauses Act 1897 has no application, though the offences may
have some overlapping features. The doctrine of double jeopardy protects a person from being
tried and punished twice for the same offence but not from different offences arising out of
violation of different laws by the same set of facts. The Supreme Court in the recent case
of Monica Bedi v State of Andhra Pradesh has ruled that a passport on fictitious name
amounted to a double jeopardy for her as a Portuguese court too had earlier convicted her for
owning forged passport.

A limitation read into the Article 20(2) is that the former ‘prosecution’ (which indicates that
the proceedings are of a criminal nature) must be before a court of law, or a judicial tribunal
which it is authorized to administer.

There is also the concept of ‘continuing offence’ which means that where an act or commission
constituting the offence is continued from day to day, a fresh offence is committed every day
and each offence can be punished separately.

Enhancement of punishment by the revising authority does not amount to second punishment.
Preventive Detention is not ‘prosecution and punishment’ and, therefore, it does not bar
prosecution of the person concerned. In the case of State of Bombay v S.L. Apte, the Supreme
Court explained the legal position as follows:

“The crucial requirement for attracting Article 20(2) is that the offences are the same, i.e.,
they should be identical. It is therefore, necessary to analyses and compare not the allegations

2
1953 AIR 131, 1953 SCR 546

8
in the two complaints but the ingredients of the two offences and see whether their identity is
made out…”

For instance, the offence under Section 161 I.P.C., is different from the offence of criminal
misconduct punishable under Section 5(2) of the Prevention of Corruption Act, though some
of the ingredients of the two offences may be common. When a person was convicted in U.S.A.
under its drug laws and on the same set of facts tried in India under the Narcotics Drugs and
Psychotropic Substances Act, 1985, it was held that the application of the principle of double
jeopardy was not available since the offences in USA and India are distinct and separate.

Under the provisions of the Indian Constitution, the conditions that have to be satisfied for
raising the plea of autrefois convict are firstly; there must be a person accused of an offence;
secondly; the proceeding or the prosecution should have taken place before a ‘court’ or
‘judicial tribunal’ in reference to the law which creates offences and thirdly; he accused should
be convicted in the earlier proceedings. The requirement of all these conditions have been
discussed and explained in the landmark decision, Maqbool Hussain v. State of Bombay[xxi] In
this case, the appellant, an Indian citizen, was arrested in the airport for the illegal possession
of gold under the provisions of the Sea Customs Act, 1878. Thereupon, an action was taken
under section 167(8) of the Act, and the gold was confiscated. Sometimes afterwards, he was
charge sheeted before the court of the Chief Presidency Magistrate under section 8 of the
Foreign Exchange Regulation Act, 1947. At trial, the appellant raised the plea of autrefois
convict, since it violates his fundamental right guaranteed under article 20(2) of the
constitution. He sought the constitutional protection mainly on the ground that he had already
been prosecuted and punished inasmuch as his gold has been confiscated by the customs
authorities. By rejecting his plea, the court held that the proceedings of the Sea Customs
Authorities cannot be considered as a judicial proceedings because it is not a court or judicial
tribunal and the adjudgment of confiscation or the increased rate of duty or penalty under the
provisions of the Sea Customs Act does not constitute a judgment or order of a court or judicial
tribunal necessary for the purpose of supporting a plea of double jeopardy. The court also held
that the proceedings conducted before the sea customs authorities were, therefore, not
‘prosecution’ and the confiscation of gold is not punishment inflicted by a ‘court’ or ‘judicial
tribunal’. The appellant, therefore, cannot be said to have been prosecuted and punished for
the same offence with which he was charged before the Chief Presidency Magistrate Court.

The presence of the phrase, ‘prosecuted and punished’ in Article 20(2) indicates that the
proceedings so contemplated are of the nature of a criminal proceedings in front of a court of
law, or a judicial tribunal, and the prosecution in that context means an initiation or starting of
a proceeding of a criminal nature in accordance with the procedure prescribed in the statute
which created the offence.

The view taken in the Maqbul Hussain case has been taken in several cases like the case
of Thomas Dana v Punjab[xxii]which said that ‘prosecution’ in Article 20(2) means “a
proceeding by way either of indictment or of information in the criminal courts, in order to put
an offender on his trial; the exhibition of a criminal charge against a person before a court of

9
justice. Gajendragadkar J. in Narayanlal Bansilal v M.P. Mistry also followed the same
principle.

The requirement of Article 20(3) that a person must have been prosecuted and punished
is conjunctive and not disjunctive.[xxiii] Thus, Article 20(3) prohibits the prosecution and
punishment of a person more than once for the same offence. It does not, however prohibit a
second prosecution and punishment for an offence for which he was previously prosecuted and
acquitted.

To operate as a bar under Article 20(3), the second prosecution and the consequential
punishment must be for the same offence, i.e., an offence whose ingredients are the same. One
of the important conditions to attract the provision under clause (3) of article is that, the trial
must be conducted by a court of competent jurisdiction. If the court before which the trial had
been conducted does not have jurisdiction to hear the matter, the whole trial is null and void
and it cannot be said that there has been prosecution and punishment for the same offence.

Thus, the three conditions for the application of this clause are:

 The person should be ‘prosecuted and punished’.

 It should be for the ‘same offence’.
 The offence should be committed ‘more than once’.

The Criminal Procedure Code, 1973 of India also makes a provision for the doctrine. The ambit
of the clause 3 of Article 20 is narrower than the protection afforded by s. 300 of the Criminal
Procedure Code. Section 300, Cr.P.C combines both autrefois convict and autrefois acquit. It
states that:

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.

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 Double Jeopardy and Res Judicata/ Issue Estoppel
In essence, the policy of protection against double jeopardy expounds that a matter, once put
to an end, may not be reopened or re litigated. The finality principle found expression in the
Roman-law doctrine of res judicata. The basic tenet of the doctrine is that a matter or question
raised by one’s adversary who has already been the subject of adjudication in previous legal
proceedings, cannot be raised once again. Roman texts on the principle of res judicata reveal
a concern that a community ought to be protected against what may be regarded as oppressive
multiplication of suits.

Our Supreme Court has held that the application of the above rule of res judicata in India is
not excluded by the fact that the rule against double jeopardy has been codified in s. 300 of the
Cr. P.C., and also guaranteed by Article 20(2) of the Constitution because the scope of the two
principles is not identical. For, the rule of res judicata rests on the principle where an issue of
fact has been tried by a competent court on a former occasion and the finding of that court has
been in favor of the accused, such finding would constitute an estoppels against the
prosecution- not as a bar to the trial but as a precluding the reception if evidence to disturb the
finding of fact when the accused is tried subsequently even for a different offence. Since the
doctrine of res judicata rests on the identity of the issues at the two trials, it is also known as
the doctrine of ‘issue estoppel’.

The basic difference between the principle of double jeopardy and res judicata is that while
the rule of double jeopardy is not applicable unless the offence involved in the subsequent
proceeding is not the same as in the former proceeding, the rule of res judicata applies even
though the offence for which the subsequent proceeding has been brought is a different one.

In India, the starting point of issue estoppels was the Privy Council decision in Sambasivam v
Public Prosecutor, Federation of Malaya. Lord MacDermott in this judgement said that:

“The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and
after a lawful trial is not completely stated by saying that the person acquitted cannot be tried
again for the same offence. To that it must be added that the verdict is binding and conclusive
in all the subsequent proceedings between the parties to the adjudication. The maxim, ‘Res
judicata pro veritate accipiture’ is no less applicable to criminal as to civil proceedings.”

11
 The subsequent position of Law.
The Supreme Court in Venkataraman v Union of India3], laid down that Art.20(3) refers to
judicial punishment and gives immunity to a person from being prosecuted and punished for
the same offence more than once. In other words, if a person has been prosecuted and punished
in a previous proceeding of an offence, he cannot be prosecuted and punished for the same
offence again in subsequent proceedings. If any law provides for such double punishment,
such law would be void. The Article however does not give immunity from proceedings other
than proceedings before a Court of law or a judicial tribunal. Hence a government servant who
has been punished for an offence in a Court of law may be subjected to departmental
proceedings for the same offence or conversely.

In O.P.Dahiya V Union of India[xxxi], it was held that if the accused was neither convicted
nor acquitted of the charges against him in the first trial his retrial would not amount to double
jeopardy and in State of Rajasthan V Hat Singh[xxxii], it was said that prosecution and other
punishment under two sections of an Act, the offences under the two Sections being distinct
from each other, does not amount to double jeopardy.

The Supreme Court in a recent decision of Kolla Veera Raghav Rao v. Gorantla Venkateswara
Rao, explaining this proposition of law inter alia observed that a person cannot be convicted
even for a different offence under a different statute if the facts leading to the conviction under
both the statutes are the same. This decision does not discuss aspect of double jeopardy and is
in considerable contrast from the earlier enunciation of law and it has been criticized.

Comparison with other 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. The purpose for which the protection has
been accepted, the problems arising out of the implementation of these purposes and the
resolution of these problems etc., are dealt with differently.

3
1954 AIR 375, 1954 SCR 1150

12
 England
The above provision of the American Constitution is indeed founded on the English Common
Law rule ‘nemo debet bis vexari’.

It enabled an accused to raise a plea not only for autrefois convict but also of autrefois
acquit before the implementation of the Criminal Justice Act, 2003.

Following the murder of Stephen Lawrence, the Macpherson Report recommended that the
double jeopardy rule should be abrogated in murder cases, and that it should be possible to
subject an acquitted murder suspect to a second trial if “fresh and viable” new evidence later
came to light. The Law Commission later added its support to this in its report “Double
Jeopardy and Prosecution Appeals” (2001).

These recommendations were implemented—not uncontroversial at the time—within

the Criminal Justice Act 2003 and this provision came into force in April 2005. It opened
certain serious crimes (including murder, manslaughter, kidnapping, rape, armed robbery, and
serious drug crimes) to a retrial, regardless of when committed. Under the new system, a
suspect can be tried again for the same offence if there is “new, compelling, reliable and
substantial evidence”, which had not been previously available.

Germany
In Germany, also principle of double jeopardy is stated in Article 103(3) of the Germany’s
Constitution:

“No one may be punished for the same act more than once in pursuance of general legislation.

Japan
The Constitution of Japan states in Article 39 that

“No person shall be held criminally liable for an act which was lawful at the time it was
committed, or of which he has been acquitted, nor shall he be placed in double jeopardy.”

However, if someone is acquitted in a lower District Court, then the prosecutor can appeal to
the High Court, and then to the Supreme Court. Only the acquittal in the Supreme Court is the
final acquittal which prevents any further retrial.

13
 U.S.A.
While numerous countries maintain variations of double jeopardy, the American approach
remains one of the more potent provisions. The American interpretation, however, has not
always provided criminal defendants a formidable defence.

The Fifth Amendment to the United States Constitution provides:

“Nor shall any person 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 empanelled, the first witness is sworn, or a plea is accepted.

The protection has been held to be not only from punishment but also from a second trial,
which commences when a man is charged before a competent tribunal. But, a retrial does not
come within the rule nor does the doctrine extend to the execution of the sentence.

The Double Jeopardy clause prevents the State from ‘punishing’ twice or attempting a second
time to ‘punish’ criminally for the same offence.

Indian Law and Double Jeopardy

The Double Jeopardy principle was existed in India prior to the enforcement of the
Constitution of India. It was enacted under in section 26. Section 26 states that “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 or
punished under either or any of those enactments, but shall not be liable to be punished twice
for the same offence. And section 403(1) of (the old) CrPC,1898 (Section 300 of the amended
Criminal Procedure Code,1973) , which states, 300(1) a person who has once been tried by a
court of competent jurisdiction for an offence and convicted or acquitted of offence shall, while
such conviction or acquittal remains in force, not to 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 under sub- section (1) of the section 221 or for sub-section
(2) thereof. It is to be noted that, the Code of Criminal procedure recognize both the pleas of
autrefois acquit as well as autrefois convict. The conditions which should be satisfied for
raising either of the plea under the Code are: firstly; that there should be previous conviction

14
or acquittal, secondly; the conviction or acquittal must be by be a court of competent
jurisdiction, and thirdly; the subsequent proceeding must be for the same offence. The
expression “same offence” shows that the offence for which the accused shall be tried and the
offence for which he is again being tried must be identical, and based on the same set of facts.
Section 71 of IPC runs as- limits of punishment of offence made up of several offences where
anything which is an offence is made up of parts is itself an offence, the offender shall not be
punished of more than one of such his offences, unless it be so expressly provided.

Constitutional Implication4

In Constitution of India, Double Jeopardy is incorporated under Article 20(2) and it is one of
fundamental right of the Indian Constitution. And the features of fundamental rights have been
borrowed from U.S. Constitution and the concept of Double Jeopardy is also one of them.
Principle of Double Jeopardy is incorporated into the U.S. Constitution in the Fifth
Amendment, which says that “no person shall be twice put in Jeopardy of life or limb.”
Article 20 of the Indian Constitution provides protection in respect of conviction for offences,
and article 20(2) contains the rule against double jeopardy which says that “no person shall be
prosecuted or punished for the same offence more than once.” The protection under clause (2)
of Article 20 of Constitution of India is narrower than the American and British laws against
Double Jeopardy.
Under the American and British Constitution the protection against Double Jeopardy is given
for the second prosecution for the same offence irrespective of whether an accused was
acquitted or convicted in the first trial. But under Article 20(2) the protection against double
punishment is given only when the accused has not only been ‘prosecuted’ but also ‘punished’,
and is sought to be prosecuted second time for the same offence. The use of the word
‘prosecution’ thus limits the scope of the protection under clause (1) of Article 20. If there is
no punishment for the offence as a result of the prosecution clause (2) of the article 20 has no
application and an appeal against acquittal, if provided by the procedure is in substance a
continuance of the prosecution.

Trial In due course of law

Article 38.1 provides that “no person shall be tried on any criminal charge save In due course
of law,” which incorporates the common law principle against Double jeopardy. This
provision is applicable to trials on indictment and Summary trials, therefore issues of
4
https://www.lawteacher.net/free-law-essays/human-rights/constitutional-implications.php

15
inequality in the criminal justice process would not arise in the scope and application of the
constitutional protection against double jeopardy. A prominent feature of the various judicial
statements pertaining to double jeopardy jurisprudence is the uncertainty with regard to the
legal basis of the principle. Typically, judicial statements have based the principle exclusively
on the common law, although it must be emphasized that the Irish superior courts have not
been afforded the appropriate opportunity to consider this issue in greater detail due to the
relative lack of litigation concerning double jeopardy law in the jurisdiction. Consequently,
judicial statements pertaining to this fundamental principle of criminal justice and procedure
have not necessarily.
Been genitive. This may be contrasted with other common law jurisdictions, Principally the
United States, where double jeopardy jurisprudence has been developed in many decisions of
the superior courts. Unlike the Constitution of the
United States, the Irish Constitution does not have an express provision against placing an
accused twice in jeopardy for the same criminal offence. However, as will be seen, it is implicit
from the superior Court’s reading of Article 38.1 that this fundamental principle of criminal
justice has constitutional status. While Article 38.1 does not delineate the exact scope of a trial
“in due course.
Of law,” the superior courts have indented fundamental rights to fair procedures in accordance
with the requirement of a fair criminal trial. This provision has been interpreted so as to provide
for multifarious rights to safeguard the Presumption of innocence of the accused and to ensure
the integrity of a fair Trial. The judicial considerations of this constitutional provision have
been summarized in the following terms:
The phrase “due course of law” may therefore be best regarded as Conveying a bundle
of principles and maxims more or less generally Accepted in the common law world, most
of them ancient, some of them of modern origin, although the scope of the guarantee is not
canned or Circumscribed by its common law roots. Some of these principles are so well
established and so much taken for granted that it is not easy to illustrate them by reference to
recent instances in which Irish courts have
Found it necessary to affirm them. Once the accused has been tried before a court of competent
criminal jurisdiction and either acquitted or convicted following a trial on the merits, a retrial
for the same criminal offence would constitute an infringement of Article 38.1.
Purported retrial for the same offence in these circumstances would constitute an infringement
not only of the common law principle against retrials but also the accused’s constitutional right
to a trial “in due course of law.”

Cases Suggesting a Common Law Principle in the State (Tynan) v District

Justice Keane, 36
The applicant referred to the Fifth Amendment to the United States Constitution in support of
his double jeopardy plea under Irish law and the Supreme Court inter alia relied on United
States case law in determining the issue. Walsh J stated: The applicant’s case was based upon
the broad general principles of the common law – that a man shall not be twice vexed for one
and the same cause, that a man ought not to be punished twice for the same offence, and that

16
a man is not to be put twice in peril - and reference was made to the Fifth Amendment of the
Constitution of the United States that ‘nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb….’ The last provision was referred to as being a
statement of the general principle relied upon by the applicant.37 He concluded that “in this
country… the power vested in the Court of Criminal Appeal to order a retrial upon the
quashing of a conviction is also a clear indication that this principle is not a fundamental
principle of law.”38In the judgment of Walsh J there is “a clear indication” that the common
law principle against double jeopardy is “not a fundamental principle of law,” which indicates
that it does not have constitutional status. However, Walsh J was speaking of a retrial following
the quashing of a conviction by the Court of Criminal Appeal. A retrial in these circumstances
is based on statute law, which may render this judicial statement concerned to the facts of the
case. In view of the close similarities between the constitutions of the United States and
Ireland, double jeopardy jurisprudence emanating from the United States Supreme Court
would have significant persuasive authority when the constitutional status of the double
jeopardy principle is considered by the Irish superior courts.40 In Conroy v Attorney
General,41 Kenny J described the historical origin of the underlying rationale of Article 38.1
in the following terms:… section 1 of the Article is an echo of the clause in the great charter
of Ireland granted in 1216…. [The] phrase “due process of law” was adopted by those who
drafted the Fifth Amendment to the Constitution of the United States of America which
prevents any person being deprived of life, liberty or property without due process of law. I
think that section 1 of the Article gives a constitutional right to every person to be tried in
accordance with the law and in accordance with due course or due process of law.42 The
jurisprudence of the United States Supreme Court pertaining to the scope and application
of the principle against double jeopardy, although not binding in this jurisdiction, would
undoubtedly provide inertial assistance in the interpretation of Article 38.1 as being the source
of this unremunerated constitutional right. The prohibition against double jeopardy is an
entrenched right in the United States Constitution by virtue of the Fifth Amendment,
therefore United States case law on double jeopardy jurisprudence must be read with a
certain degree of circumspection as an unremunerated constitutional right against double
jeopardy would not necessarily provide the same level It was submitted for the defendant…

in jeopardy of conviction on that charge in the District Court and, as he was found not guilty
of it by the District Judge, the defendant was entitled to the benefit of the doctrine of autrefois
acquit in relation to the robbery charge. No authorities in support of this contention were cited
but, after much anxious consideration, I have come to the conclusion that it is correct. “It is an
established rule of the common law that a man may not be put twice in peril for the same
offence….” This is the basis of autrefois acquit.44In view of the fact that the Court did not
consider the constitutional status of double jeopardy, this judicial reluctance may be indicative
that the Court did not consider the principle to be an unremunerated constitutional right.

17
 Substantive or Procedural Constitutional Right5
A fundamental issue regarding the constitutional status of double jeopardy is whether it is a
substantive or procedural right.66 The issue here is whether the accused is concerned to
pleading double jeopardy at the beginning or during the course of a criminal trial, or
alternatively whether the accused is permitted to raise the special pleas in bar, autrefois acquit
and autrefois convict, when initially charged with the commission of a criminal offence. If
the double jeopardy principle is a substantive constitutional right the prosecution would be
estopped from indicting the accused for the same criminal offence for which he had formerly
been acquitted or convicted following a trial on the merits. Conversely, a procedural right
could be pleaded either at the outset or during the course of the criminal trial. A trial “in due
course of law” as mandated by Article 38.1 does not delimit the rights of the accused to ensure
a fair and impartial in accordance with this constitutional provision. Referring to this
ambiguity in The State (Healy) v Donoghue, Gannon J considered Article 38.1 to be:… a
phrase of very wide import which includes in its scope not merely matters of constitutional
and statutory jurisdiction, the range of legislation with respect to criminal offences, and matters
of practice and procedure, but also the application of basic principles of justice which are
inherent in the proper course of the exercise of the judicial function.67Gannon J refers to
“matters of practice and procedure” which could indicate that the double jeopardy principle is
a procedural right. However, if the common law immunity against retrials is a constitutional
right to fair procedures, the issue is whether the protection this concerned to ensuring that the
accused is tried “in due course of law,” that is, a trial according to positively enacted laws.
Alternatively, a substantive constitutional right against double jeopardy in accordance with
Article 38.1 could be interpreted as proscribing a retrial for the same criminal offence as initio
as a retrial in these circumstances would not be “in due course of law” in view of the fact that
the guilt or innocence of the accused was formerly determined by a court of competent criminal
jurisdiction.68Given the stipulation in Article 38.1, and the unremunerated rights identified by
the superior courts in accordance with this provision,69 constitutional protection against
double jeopardy could be identified as a procedural right. However, procedural rules are
more concerned with the adjudication process in the criminal trial rather than conferring any
substantive right on the accused, and therefore may not in fact merit constitutional status. They
would instead be provided for under relevant criminal procedure legislation. The constitutional
right against double jeopardy is more aptly described as a substantive right in the criminal
justice process especially in consideration of the rationale for the development of the double
jeopardy principle at common law.

5
https://en.wikipedia.org/wiki/Substantive_due_process

18
 Hypothesis
An applicant seeking relief under Article 38.1 must establish that there is a “real or serious
risk” that he would not receive a trial “in due course of law.”71 Consequently, it is reasonable
to assume that the protection against double jeopardy is an implicit right in accordance with
this constitutional provision, thus prohibiting a retrial for the same criminal offence following
an acquittal or conviction on the merits by a court of competent criminal jurisdiction. A trial
“in due course of law” as mandated by Article 38.1 is a fundamental requirement of criminal
justice systems in liberal democracies. It stipulates, inter alia, that during the course of a
criminal trial the accused is presumed innocent of the criminal charges in the indictment until
proven guilty following a trial on the merits;72 the right of appeal against conviction;73 and
the right not to be retried for the same criminal offence.74 It follows that this constitutional
provision incorporates the unremunerated constitutional right against retrials, or indeed the
imposition of multiple punishments for the same criminal offence. This is significant for the
accused in view of the fact that an unremunerated constitutional right against double jeopardy
is a fundamental right against retrials as opposed to a common law principle per secretin rights
and principles are designed to ensure that in the interests of justice the accused receives a fair
criminal trial in accordance with Article 38.1. A large body of case law has identified these
rights and principles and the Constitution Review Group has recommended that the
protections, which are implicit in this constitutional provision, should be made explicit and
that the rights protected by it should be enumerated.75 Among these is the right “not to be tried
a second time for the same offence following upon a valid conviction or acquittal.”76 The
Review Group concluded that the double jeopardy principle is an unremunerated constitutional
right in accordance with Article 38.1. The Constitution is “the fundamental law of the State.”77
As a general rule, the constitutional status of double jeopardy in accordance with Article
38.1 would be superior to common law and legislation purporting to assert the contrary,78
although it could be curtailed by legislation. Indeed, the Report of the Constitution Review
Group noted, “[t]he fact that the right in question has been held to be implicitly protected by
Article 38.1 does not, however, mean that it cannot be validly restricted where appropriate by
the Oireachtas.”79This may prove to be a contentious issue when the Oireachtas ultimately
adopts the policy of several common law jurisdictions where the double jeopardy principle has
been reformed thus providing a statutory exception where fresh and compelling evidence of
the accused’s guilt is discovered following an acquittal.80 In view of the fact that Article
38.1 incorporates the double jeopardy principle, it follows that this constitutional provision
is not purely a procedural guarantee in the criminal justice process.

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 Trial by jury6
This provision affirm the constitutional status of the double jeopardy principle on the basis that
in the case of a trial on indictment once the jury has determined the guilt or innocence, the
accused could thereafter raise the special pleas in bar against a retrial for the same criminal
offence. A purported retrial in these circumstances would constitute a violation not only of the
common law principle against double jeopardy but also of the defendant’s right to trial by jury
and nullity of verdict in the criminal justice process. Given that Article 38.5 suggests a
principle against retrials for jury trials, then Article 40.1, the equality guarantee, would provide
an extension of the principle to other types of trials. Article 5 of the Constitution provides
that “Ireland is a sovereign, independent, democratic state,” which denotes that government
authority is derived from the consent of the governed and the People maintain legitimacy
through participation in a representative democracy. Popular sovereignty, that is, the State is
the creation of the People, 83 is also expressed by the Preamble. Legitimate authority of
government is derived from the consent of the governed,84 and in constitutional democracies
the People delegate authority and confer legitimacy while retaining sovereignty, thus
possessing the final check on governmental authority Dawson contends that the concept of
popular sovereignty should be final and unappealable.86 Thus, the prosecution authorities
must not undermine this process by disregarding the verdict of the jury and re-prosecuting an
accused for the same criminal offence. It is arguable that in consideration of a jury verdict of
acquittal or conviction that the prosecution authorities should not be authorized to review this
verdict with the objective of prosecuting an accused for the same criminal offence. Conversely,
what must also be considered is that the jury’s determination occasionally must be reconciled
with human infallibility with the result that verdict of the jury should not necessarily be
unalterable.

Equality In the criminal Justice process

Article 40.1, provides that “all citizens shall, as human persons, be held equal before the law.”
This provision was designed to prevent “arbitrary, unreasonable or unjust (invidious)
discrimination.”87 The equality guarantee may be invoked to strike down legislation, or any
provision thereof, that is deemed unconstitutional, and is also applicable to common law rules
in the criminal justice process.88 Thus, in The State (DPP) v Walsh, the Supreme Court held
that common law defense of marital coercion, which was only available to a wife who allegedly
committed a criminal offence in the presence of her husband, did not survive the enactment of
the Constitution. Article 40.1 may be invoked in support of the thesis that the common law
principle against double jeopardy has constitutional status where an accused is indicted on a

6
https://en.wikipedia.org/wiki/Jury_trial

20
second occasion for the same criminal offence following an acquittal or conviction. There
could be an issue of constitutional inequality in the criminal justice process if it could be
established that individuals in similar circumstances have not been indicted and tried, or indeed
retried, for the same criminal offence. If, in other words, the constitutional right against double
jeopardy were applicable only to the trial of offences on indictment this could be
constitutionally suspect for failing to accord protection against retrials for summary offences.
Conversely, an argument can be made that the abuse of process doctrine is more relevant in
the case of summary offences rather than a strict application of the double jeopardy principle.
A conviction for an indictable offence typically results in the deprivation of personal liberty
in accordance with a sentence of a specified term of imprisonment, in addition to the
adverse social stigma associated with a criminal trial and conviction for a serious criminal
offence. In circumstances where the accused has been charged with a multiplicity of summary
offences this may have the combined effect of causing a considerable measure of
(unreasonable) harassment and distress to the accused? A case in point is the scenario
involving Mr McBrearty wherein the accused was issued with more than 160 summonses
mainly relating to alleged breaches of licensing laws and road traffic offences.91 Although all
of the summonses were subsequently withdrawn the combined effect of such a prosecution, if
the accused were convicted on all charges, would undoubtedly have the effect of unduly
distressing the accused, perhaps to the extent of being charged with an indictable offence.
Accordingly, if an accused has been acquitted of a multitude of summary offences and the
prosecution authorities subsequently issue fresh summonses for these same offences, this could
constitute an infringement of the fundamental rationale of the double jeopardy principle.
Therefore, the constitutional protection against double jeopardy would be available to an
accused charged with indictable and summary offences, and offences triable either way.
However, in the McBrearty case, as the summonses were subsequently withdrawn and the case
did not proceed to verdict, the appropriate course of action would be to prevent the prosecuting
authorities from re-issuing the summonses as this would constitute an abuse of the process of
the court rather than an application of the double jeopardy principle, which is predicated on a
final verdict of acquittal or conviction.

Article 40.1 may support the constitutional status of the common law principle against double
jeopardy. The equality guarantee may be invoked by an accused where it is alleged that a
statute (or provision thereof) or common law rule pertaining to double jeopardy law is arbitrary
or unreasonable in the criminal justice process.

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 Personal rights against retrials7
Article 40.3.1° of the Constitution provides that “the State guarantees in its laws to respect,
and, as far as practicable, by its laws to defend and vindicate the personal rights of the
citizen.”93 It is an established principle of constitutional interpretation that certain provisions
should be construed based on a hierarchy of constitutional rights. In The State (Healy) v
Donoghue, Ó Higgins CJ stated: Article 38 deals specially with a criminal trial and provides
that no person should be tried on any criminal charge save in due course of law. This Article
must be considered in conjunction with Article 34… [And] with Article 40.3.1°…. Being so
considered, it is clear that the words “due course of law” in Article 38 make it mandatory
that every criminal trial shall be conducted in accordance with the concept of justice, that the
procedures applied shall be fair, and that the person accused will be afforded every opportunity
to defend himself. If this were not so, the dignity of the individual would be ignored and the
State would have failed to vindicate his personal rights.94Consequently, a fair trial in
accordance with Article 38 is guaranteed by the Constitution and a failure by the State to
“defend and vindicate” this constitutional right would constitute an infringement of the
accused’s personal rights in the criminal justice process. This implies that the State would
be prohibited from retrying an accused for the same criminal offence following a trial on the
merits by a court of competent criminal jurisdiction. In D v Director of Public Prosecutions,
Denham J stated:

The applicant’s constitutional rights must be protected. Under the Constitution, Article 38.1: -
“No person shall be tried on any criminal charge save in due course of law.” The
unremunerated rights of Article 40.3 incorporate a right to fairness of procedures…. The
applicant’s right to a fair trial is one of the most fundamental constitutional rights accorded to
persons. On a hierarchy of constitutional rights it is a superior right.95The purported retrial of
an accused, notwithstanding a former verdict of acquittal for the criminal offence, would
constitute a violation of the constitutional right to a fair trial “in due course of law.” Moreover,
in the case of a retrial for the same offence the personal rights of the citizen to “fairness of
procedures” might also be infringed. The fundamental injustice in prosecuting an accused for
the same criminal offence following an acquittal or conviction necessitates intervention of the
Constitution “as the fundamental law of the State.”96 In a constitutional democracy it is
clear that the personal rights of the citizen include the right not to be unduly harassed by the
State through repeated attempts to prosecute and convict an accused for the same criminal
offence. Consequently, the prosecution of an accused on more than one occasion for the same
offence would constitute a violation of the accused’s constitutional right to fair procedures.97
Furthermore, the adverse standing of the accused in the criminal justice process, as opposed to
the power and resources available to the State in the prosecution of criminal offences,
7
https://en.wikipedia.org/wiki/Double_Jeopardy_Clause

22
necessitates the intervention of the constitutional protection against such procedures. It is
significant that Article 40.3.1° includes the term “as far as practicable” which signings that
this is not an absolute guarantee to “defend and vindicate the personal rights of the citizen,” as
it is subject to appropriate exceptions where this is necessitated based on a hierarchy of
constitutional rights. Therefore, assuming the double jeopardy principle is a personal right of
the citizen, it would not be an absolute right but rather subservient to other provisions based
on a hierarchy of constitutional rights in the criminal justice process. This is significant for the
collective interests of society to ensure that individuals who have committed serious criminal
offences are tried and punished accordingly, even if this involves a retrial for the same offence
such as in the case of a mistrial, or possibly a retrial following an acquittal where fresh and
compelling evidence of the accused’s guilt is subsequently discovered.

Multiple punishments for the same criminal offence

Article 40.4.1° provides that “no citizen shall be deprived of his personal liberty save in
accordance with law.” This provision is pertinent to the double jeopardy proscription given
that a conviction by a court of competent criminal jurisdiction typically results in the
deprivation of personal liberty in accordance with a specified term of imprisonment.99 In The
State (Tynan) v Keane, Henchy J stated: [The applicant]… says he has a right not to be put in
peril of being deprived of his liberty again for the same offence…. He could have invoked and,
in fact, did invoke Article 40, section 4, subs 1°, of the Constitution in respect of that
imprisonment. That is the only constitutional provision relied on today, but I and it inapplicable
to the present position under the pending summons…. The fact that the applicant has served
part of a void sentence of imprisonment does not, on constitutional or other grounds, debar a
new trial for the same offence. The Court of Criminal Appeal has never considered that its
jurisdiction to order a new trial is inhibited by the fact that an appellant has served part of the
quashed sentence.100The imprisonment of a defendant following a conviction by a court of
competent criminal jurisdiction following a trial on the merits constitutes punishment by
means of the deprivation of “personal liberty… in accordance with law.”101 If the criminal
trial had proceeded on the merits of the case concluding in a verdict of acquittal or conviction,
then a purported retrial for the same criminal offence resulting in the deprivation of personal
liberty would constitute an infringement of Article 40.4.1°. However, in this instance the
conviction was quashed on the basis that it was ultra vires the jurisdiction of the trial court and
therefore void abs initio. Consequently, in these circumstances there is no legal impediment
parse against a retrial for the same criminal offence, provided that the defendant is credited
with the period of imprisonment served on the original, albeit void, conviction.102 This is
significant in view of the fact that the principle against double jeopardy was not only designed
to prevent multiple prosecutions but also operates to prevent the imposition of multiple
punishments for the same criminal offence.103 Whereas the deprivation of liberty may be

23
imposed subsequent to a ending of guilt, the rationale for pleading double jeopardy is to
prevent a second trial for the same offence from proceeding as initio. Thus, while this
constitutional provision has double jeopardy connotations it does not by itself form the basis
of the constitutional right against double jeopardy. Nevertheless, this provision may provide
individual assistance in support of a more pertinent line of reasoning in favor of a constitutional
right against retrials and the imposition of multiple punishments for the same criminal offence.

An unqualified constitutional right8

The Constitution clearly stipulates that certain provisions are not absolute but rather subject to
exceptions in appropriate circumstances. A fundamental issue to be resolved is whether the
constitutional protection against double jeopardy is an unconditional right or alternatively
subject to an exception where fresh and compelling evidence of guilt is discovered following
an acquittal. This is significant in the light of recent and proposed legislative reforms of
double jeopardy law in several common law jurisdictions, including Ireland.104 These reforms
do not advocate a complete abolition of the common law principle but rather that it would
be subject to an exception where fresh and compelling evidence of the guilt is discovered
following an acquittal, especially in consideration of new forensic procedures for gathering
evidence of criminal activity. An accused could be retried where his conviction has been
quashed or where there had been procedural irregularities, such as a tainted acquittal, that
nullify the former criminal trial. Consequently, the constitutional protection against double
jeopardy would not preclude a retrial for the same criminal offence in circumstances where the
former criminal trial was quashed on appeal on the basis that the decision of the trial court was
ultra vires, or the trial court was deemed a Coram non judice.105 However, legislation which
permitted the prosecution authorities to petition the Court of Criminal Appeal to quash an
acquittal in the light of fresh and compelling evidence of guilt, and order a retrial, could
constitute a substantial inroad in the fundamental rights of the accused in the criminal justice
process. The Constitution is founded upon the premise inter alia “that the dignity and freedom
of the individual may be assured, true social order attained.”106 The contentious issue is
whether it would be in the interests of the preservation of a just and ordered society to
unconditionally prohibit retrials for the same criminal offence where fresh and compelling
evidence of the accused’s guilt is discovered following an acquittal. The thesis of this article
suggests that the double jeopardy principle is an unspecified constitutional right in accordance
with Article 38.1. The issue to be determined is whether this would be an absolute right or,
alternatively, subject to a hierarchy of constitutional rights; thus permitting a retrial, albeit in
strictly limited circumstances, by proposed reforming legislation. While numerous implicit

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24
rights have been interpreted in accordance with Article 38.1 as essential to a trial “in due course
of law,” these are not necessarily absolute rights. The Constitution provides a hierarchy of
rights and the Supreme Court has identified certain rights as superior to others in the criminal
justice process. In The People (DPP) v Shaw, concerning the right to life of the victim as
opposed to the right to personal liberty of the accused, Grifn J explained that: … the hierarchy
or priority of the conducting rights must be examined, both as between themselves and in
relation to the general welfare of society. This may involve the toning down or even the outing
into temporary abeyance of a particular guaranteed right so that, in a fair and objective way,
the more pertinent and important right in a given set of circumstances may be preferred and
given application. While the accused is entitled to the benefit of fair procedures during the
course of the criminal trial, this must be reconciled with the preservation of a just and ordered
society through the prosecution of individuals deemed to have committed serious criminal
offences. In other words, the collective interest of a democratic society in the prosecution and
punishment of offenders may result in the accused’s right to a trial “in due course of law”
or what is otherwise known as the right to due process,109 occasionally being subservient to
society’s collective interest in the investigation and prosecution of individuals who have
committed serious criminal offences. This is not to suggest substantial inroads in the
fundamental rights of the accused in the criminal justice process but rather to provide for an
exception in circumstances where fresh and compelling evidence of the accused’s guilt is
discovered following an acquittal, or indeed where there had been a tainted acquittal. This is
an issue that will need to be resolved if the Oireachtas adopts the policy of other common law
jurisdictions in reforming the law on double jeopardy providing for a statutory exception to
the double jeopardy principle. Would it be in the interests of a justly ordered society to permit
a prosecution for the same offence following an acquittal, or would this constitute a violation
of the accused’s unremunerated constitutional right not to be placed twice in jeopardy for the
same offence? While policy considerations will determine this issue, these may not be
determinative of the constitutional rights of the accused in the criminal justice process.110 An
argument could be made that there would be no legal or constitutional impediment against
permitting retrials in limited circumstances as the unremunerated constitutional right against
double jeopardy would be subject to a hierarchy of rights in the criminal justice process. As a
general rule, the accused’s right to a fair trial is superior to the collective interests of society
in the prosecution of serious criminal offences.111 However, in circumstances where fresh
and compelling evidence of the accused’s guilt is discovered following an acquittal, or where
the former criminal trial was a nullity, the issue of contention is whether it would be contrary
to the effective administration of the criminal justice system of a justly ordered society to
permit a retrial for the same criminal offence, albeit in strictly limited circumstances. It is
implicit from the judgement of O’Higgins CJ in Re Criminal Law (Jurisdiction) Bill 1975
that a retrial following an acquittal could proceed in accordance with policy considerations
pertaining to the prosecution of individuals who have committed serious criminal offences.

25
Consequently, the unremunerated constitutional right against double jeopardy in accordance
with Article 38.1 may not be an absolute right against retrials but rather subject to (proposed)
statutory reform applicable in circumstances where fresh and compelling evidence of the
accused’s guilt is discovered following an acquittal. In The People (DPP) v O’Shea,112 the
Supreme Court held that the DPP could appeal an acquittal from the Central Criminal Court
to the Supreme Court, notwithstanding the status of the common law principle against double
jeopardy in the Irish criminal justice system. The Supreme Court in O’Shea adopted a literal
interpretation of Article 34.4.3° and, in so doing, held “all decisions of the High Court”
including an acquittal in the Central Criminal Court,113 could be appealed to the Supreme
Court. This ruling has been repealed by statutory provision.114Article 4(1) of Protocol 7 to
the European Convention on Human Rights provides for the prohibition against retrials for
the same offence within the jurisdiction of the same state. However, Article 4(1) ECHR is not
an absolute guarantee against double jeopardy and may be circumvented in accordance with
the law and criminal procedure of signatory states to the ECHR in consideration of fresh and
compelling evidence of guilt, or indeed where there has been a fundamental defect in the
former criminal proceedings.115 Given the legal status of the ECHR under Irish law, Article
4 ECHR would provide influential authority for the Oireachtas and Irish superior courts when
determining the constitutional status of the double jeopardy principle.

Can Different Charge Is Laid For the Same Action or Same

Offence?
Doctrine against Double Jeopardy in Constitution of India, Article 20(2) says that ‘no person
shall be prosecuted and punished for the same offence more than once.” But it is subjected to
certain restrictions. And it is to be noted that Article 20(2) of Constitution of India does not
apply to a continuing offence.
There are some examples of cited cases mentioned below which throw light on the above
question:
In Venkataraman v. Union of India, An enquiry was made before the enquiry commissioner
on the appellant under the Public Service Enquiry Act, 1960 & as a result, he was dismissed
from the service. He was later on, charged for committed the offence under Indian Penal Code
& the Prevention of Corruption Act. The court held that the proceeding held by the enquiry
commissioner was only a mere enquiry & did not amount to a prosecution for an offence.
Hence, the second prosecution did not attract the doctrine of Double Jeopardy or protection
guaranteed under Fundamental Right Article 20 (2).
It is to be noted that Article 20 (2) will applicable only where punishment is for the same
offence, In Leo Roy v. Superintendent District Jail, The Court held: if the offences are distinct

26
the rule of Double Jeopardy will not apply. Thus, where a person was prosecuted and punished
under sea customs act, and was later on prosecuted under the Indian Penal Code for criminal
conspiracy, it was held that second prosecution was not barred since it was not for the same
offence.
In Roshan Lal & ors v. State of Punjab, The accused had disappeared the evidence of two
separate offences under section 330 & section 348 Indian Penal Code. So, it was held by the
court that the accused was liable to be convicted for two separate sentences.

In this case, the appellants were charged under section 409 IPC & Section 5 of the prevention
of Corruption Act,1947 for making false panchnama in which they have shown recovery of 90
gold biscuits while according to the prosecution case, they had recovered 99 gold biscuits. The
appellants were tried for the same & acquitted. The appellants were again tried for the offence
under section 120-B of Indian Penal Code, Section 135 & 136 of the Customs Act, Section 85
of the Gold (control) Act & Section 23(1-A) of FERA and Section 5 of Import Export (control)
Act,1947. The validity of the subsequent prosecution was challenged by the appellant by the
appellant on the ground that it contravened the constitutional guaranteed embodied in Article
20(2). The court held: “After giving our careful consideration to the facts and circumstances
of the case and the submissions made by the learned counsel for the respective parties, it
appears to us that the ingredients of the offences for which the appellants were charged in the
first trial are entirely different. The second trial with which we are concerned in this appeal,
envisages a different fact- situation and the enquiry for finding out constituting offences under
the Customs Act and the Gold (Control) Act in the second trial is of a different nature. Not
only the ingredients of offences in the previous and the second trial are different, the factual
foundation of the first trial and such foundation for the second trial is also not indented (sic).
Accordingly, the second trial was not barred under Section 403 CrPC OF 1898 as alleged by
the appellants.”

In Union of India & Anr. v. P.D. Yadav,[12] In this case, the pension of the officer, who was
convicted by a Court-Martial, had been forfeited. The court held: “This principle is embodied
in the well-known maxim nemo debet bis vexari si constat curiae quod sit pro una et eadem
causa, meaning no one ought to be vexed twice if it appears to the court that it is for one and
the same cause. Doctrine of Double Jeopardy is a protection against prosecution twice for the
same offence. Under Article 20-22 of the Indian Constitution, provisions are made relating to
personal liberty of citizens and others offences such as criminal breach of trust,
misappropriation, cheating, defamation etc., may give rise to prosecution on criminal side and
also for action in civil court/ other forum for recovery of money by way of damages etc., unless
there is a bar created by law. In the proceedings before General Court Martial, a person is tried
for an offence of misconduct and whereas in passing order under Regulation 16 (a) for
forfeiting pension, a person is not tried for the same offence of misconduct after the punishment

27
is imposed for a proven misconduct by the General Court Martial resulting in cashiering,
dismissing or removing from service. Only further action is taken under Regulation 16 (a) are
entirely different. Hence, there is no question of applying principle of Double Jeopardy to the
present cases.”

In Jitendra Panchal v. Intelligence Officer N.C.B9., 17th October, 2002, officers of the US
Drug Enforcement Agency, along with officers of the Narcotics Bureau, India, seized a
consignment of 1243 pounds equivalent to 565.2 Kgs. of Hashish in Newark, USA. During the
investigation, it appears to have transpired that one Niranjan Shah and the appellant were
engaged in trafficking Hashish out of India into the USA and Europe and that the seized
contraband had been smuggled out of India by the appellant and the said Niranjan Shah along
with one Kishore. The appellant was arrested in Vienna in Austria by officers of the Drug
Enforcement Agency, USA on 5th December, 2002 and was extradited to the USA. Soon,
thereafter, on 25th March, 2003, the Deputy Director General of the Narcotics Control Bureau,
hereinafter referred as `the NCB', visited the USA and recorded the appellant's statement.
Subsequently, on 9th April, 2003, officers of the NCB arrested Niranjan Shah, Kishore Joshi
and Irfan Gazali in India and prosecution was launched against them in India. On 5th
September, 2003, a complaint was filed by the NCB before the learned Special Judge, Mumbai,
against Niranjan Shah, Kishore Joshi and two others under Sections 29/20/23/27A/24 read
with Section 8(c)/12 of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter
referred to as `the NDPS Act', in connection with the above-mentioned incident. While the
said Niranjan Shah and others were being proceeded with before the learned Special Judge in
Mumbai, the appellant, who had been extradited to the USA, was tried before the District Court
at Michigan, USA, On pleading guilty of the charge of conspiracy to possess with intention to
distribute controlled substances, which is an offence under USC Controlled Substances Act,
the appellant was sentenced to imprisonment on 27th June, 2006, for a total term of 54 months.
After serving out the aforesaid sentence, the appellant was deported to India on 5th April,
2007, and on his arrival at New Delhi, he was arrested by officers of the NCB and was taken
to Mumbai and on 10th April, 2007, he was produced before the learned Chief Metropolitan
Magistrate and was remanded to judicial custody. At this juncture, it may be indicated that
although the appellant could have been prosecuted for other offences under Title 21 USC, the
other charges against the appellant were dropped as he had pleaded guilty to the offence.

9
Ncb & Anr on 3 February, 2009

28
 Judicial analysis
State of Haryana vs Balwant Singh10

A three Judge Bench of this Court in Union of India and anr. vs. P.D. Yadav [(2002) 1 SCC
405], while dealing with more or less a similar contention with regard to double jeopardy, has
held thus:-

"A contention, though feebly, was advanced on behalf of some of the respondents that
forfeiture of pension in addition to the punishment imposed under Section 71 of the Army Act
amounted to double jeopardy. In our view, this contention has no force.

There is no question of prosecuting and punishing a person twice for the same offence.
Punishment is imposed under Section 71 of the Army Act after trial by Court Martial. Passing
an order under Regulation 16(a) in the matter of grant or forfeiture of pension comes thereafter
and it is related to satisfactory service. There is no merit in the contention that the said
Regulation is bad on the ground that it authorized imposition of a double penalty; may be in a
given case, penalty of cashiering or dismissal from service and the consequential forfeiture of
pension may be harsh and may cause great hardship but that is an aspect which is for the
President to consider while exercising his discretion under the said Regulation. May be in his
discretion, the President may hold that the punishment of cashiering or dismissal or removal
from service was sufficient having regard to circumstances of thecase and that a person need
not be deprived of his right to pension. A crime is a legal wrong for which an offender is liable
to be prosecuted and punished but only once for such a crime. In other words, an offender
cannot be punished twice for the same offence. This is demand of justice and public policy
supports it. This principle is embodied in the well-known maxim nemo debet bis vexari, (si
constat curiae quod sit) pro una et eadem causa meaning no one ought to be vexed twice if it
appears to the court that it is for one and the same cause. Doctrine of double jeopardy is a
protection against prosecution twice for the same offence. Under Articles 20-22 of the Indian
Constitution, provisions are made relating to personal liberty of citizens and others. Article
20(2) expressly provides that: "No. one shall be prosecuted and punished for the same offence
more than once." Offences such as criminal breach of trust, misappropriation, cheating,
defamation etc., may give rise to prosecution on criminal side and also for action in civil
court/other forum for recovery of money by way of damages etc., unless there is a bar created
by law. In the proceedings before General Court Martial, a person is tried for an offence of

10
4 March, 2003
29
misconduct and whereas in passing order under Regulation 16(a) for forfeiting pension, a
person is not tried for the same offence of misconduct after the punishment is imposed for a
proven misconduct by the General Court Martial resulting in cashiering, dismissing or
removing from service. Only further action is taken under Regulation 16(a) in relation to
forfeiture of pension. Thus, punishing a person under Section 71 of the Army Act and making
order under Regulation 16(a) are entirely different. Hence, there is no question of applying
principle of double jeopardy to the present case."

Under these circumstances, there was no question of the respondent suffering

a double jeopardy. The aid of Article 20(2) of the Constitution of India was wrongly taken.
Article 20(2) of the Constitution of India does not get attracted to the facts of the present case.
Before the trial court, no issue was raised as to the respondent suffering a double jeopardy
although in the first appellate court, the discussion was made on this point. In the view we
have expressed above that the High Court committed a serious error in holding that the
respondent was prosecuted and punished for the same offence twice, the impugned judgment
cannot be sustained. Hence, the same is set aside. The judgment and decree passed by the trial
court as affirmed by the first appellate court is restored. The appeal is allowed accordingly but
with no order as to costs.

Uoi & Ors. vs Duli Chand on 7 December, 201011

1. Vide impugned judgment and order dated 25.3.2009, OA No.580/2008 filed by the
respondent Duli Chand has been allowed with a direction that the sealed cover containing the
recommendation pertaining to the petitioner for promotion to the post of Additional
Commissioner be opened and recommendation implemented. It has been held that the penalty
order dated 2.5.2003 has to be given effect from said date.

2. Vide order dated 2.5.2003 the Disciplinary Authority inflicted upon the respondent the
punishment of stoppage of two annual increments with cumulative effect which was quashed
by the Tribunal when respondent filed OA No.1573/2003. Tribunal's order was upheld by the
High Court but was reversed by the Supreme Court when CA No.2168/2006 was disposed of
by the Supreme Court on 21.4.2006 and the penalty imposed by the Disciplinary Authority
was restored. It may be noted that before the penalty could be implemented, the respondent
obtained a stay from the Tribunal and since the Tribunal quashed the penalty the same could
not be implemented and the stage for implementation came only when the Supreme Court
pronounced the verdict on 21.4.2006. Another relevant fact is that pending inquiry, since

11
7 December, 2010

30
entitlement of the respondent to be considered for further promotion enured, at the DPC held,
the recommendation pertaining to him was put in a sealed cover.

3. Before the Department could give effect to the penalty by withholding the first increment
which fell due after the Supreme Court decided the issue of penalty on 21.4.2006 and thereafter
could withhold the second increment the next year; penalty being to withhold two increments
cumulatively, the respondent deposited `45,148/- being the amount received by him in excess
of what he would have received had the penalty been implemented in the year 2003 and 2004
and for which he calculated the amount with reference to the increment payable as per the scale
in which he was drawing salary in the years 2003 and 2004. He claimed thereafter that the
penalty lasted for two years and would have to be treated as effective from the date when the
penalty was levied i.e. 2.5.2003 and would lapse after two years and therefore he had to be
promoted and for which he prayed that the sealed cover containing recommendations
pertaining to him should be opened.

4. Since the Department did not allow the claim and held that the suo motu deposit of `45,148/-
by the petitioner was meaningless, the Department sought to inflict the penalty with respect to
the increment which became due to the respondent after 21.4.2006 and additionally refused to
open the sealed cover, the respondent litigated for a second time by filing OA No.580/2008,
which as noted in para 1 above, has been allowed by the Tribunal.

5. Pertaining to the direction issued by the Tribunal that the sealed cover containing the
recommendation pertaining to the respondent be opened, suffice would it be to state that the
Tribunal has ignored the fact that respondent's name was kept in a sealed cover on account of
a Disciplinary Proceeding pending against him and in which the respondent has been held
guilty and thus the question of giving effect to the recommendations of the DPC does not arise
in view of the law declared by the Supreme Court in the decision reported as 1991 (4) SCC
109 UOI & Ors. vs. K.V.Janakiraman & Ors.

6. But the question remains as to the giving effect to the penalty of withholding two annual
increments on permanent basis.

7. As noted above, before the penalty could be levied, the respondent had obtained a stay from
the Tribunal and since OA No.1573/2003 filed by him was ultimately allowed and the penalty
quashed, the question of the Department implementing the same did not arise till the
Department succeeded before the Supreme Court on 21.4.2006.

8. Now, as explained by the Bombay High Court in the decision reported as 2009 (3) Mah.L.J.
968 Britannia Industries vs. M.G.K. Union, the effect of an interim stay by a Court with respect
to a matter puts under eclipse the subject matter of the matter and the effect of the interim stay
being vacated is to remove the eclipse. This was so held by the Supreme Court in the decision
reported as AIR 1975 SC 1950 Smt.Indira Gandhi vs. Raj Narayan when the Supreme Court
observed that the reasonable effect of stay order is that there is plenary eclipse of the High
Court's judgment and order during the pendency of appeal.

31
9. Conventionally understood, the Doctrine of Eclipse pertains to the area of Constitutional
Law where an existing law is held to be inconsistent with a fundamental right and this would
be making the law inoperative from the date of commencement of the Constitution or a law
enacted post independence but held to be unconstitutional and in both circumstances by and
under a constitutional amendment, the blemish/infirmity is removed with reference to the
existing law. The law in the moribund or eclipsed state, becomes operative on the principle as
explained by the Supreme Court in the decision reported as AIR 1955 SC 781 Bhikaji Narayan
vs. State of M.P. that an existing law inconsistent with a fundamental right though becomes
inoperative from the date of commencement of the Constitution is not dead altogether and the
position is that it is eclipsed for the time being and the effect of the amendment to free it from
blemish or infirmity removes the shadow and makes the impugned act free. In the decision
reported as AIR 1958 SC 468 M.P.V Sundaramier vs. State of AP it was held that when the
Constitutional bar is removed by a Constitutional amendment, the law held to be
unconstitutional will operate proprio vigour after the Constitutional amendment and there is
no need for fresh legislation.

10. We have referred to the afore-noted decisions to simply explain the jural concept of
Doctrine of Eclipse which makes us understand that upon being stayed by a Court a penalty
order would remain eclipsed and not dead and that the moment the stay is vacated, the same
would operate proprio vigour i.e. on its own strength.

11. To put it differently the de facto component of a penalty order continues to exist since this
is a matter of fact. Its de jure status comes under a cloud as a result of it being stayed and would
die a temporary death if the order is ultimately set aside. But it gets resurrected, not reborn,
when the order quashing the penalty is set aside by a superior Court.

12. Thus, it can safely be said that an order levying penalty which has come under an eclipse
has to be given its effect from the date it was born and not from the date when the eclipse was
removed, but this would be subject to an exception of a deemed reality. The deemed reality
would be dependent upon the nature of the penalty order. Let us take an order of penalty of
removal from service which gets stayed before it is served upon the employee i.e. before it
takes effect. The stay is ultimately vacated. The penalty order must take effect from the
retrospective date and not prospectively. This would be on the principle that the order
resurrects and was always in existence; it came under an eclipse due to the stay and upon the
eclipse being removed would operate proprio vigour. But let us take a penalty order as of the
instant kind i.e. stoppage of two increments. This penalty order would have various
implications, the first being the delinquent not earning promotions in the next two years. The
second being disentitled to be considered for promotion during the currency of the penalty i.e.
for two years. The third would be the penalty to be considered by the Departmental Promotion
Committee as a part of the ACR record if falling within the preceding five years' period; for
the reason DPC's consider the preceding five years' ACR records of eligible government
servants and exceptionally, where the rules or guidelines contemplate, the entire service record
to be considered. This penalty order would have various manifestations in its applicability and
thus such penalty order being stayed and stay vacated, the effect thereof has to be considered
very carefully.
32
13. The reason is that it would be an extremely unjust situation and may be held to be
unreasonable if the effect of the penalty is disproportionate to the penalty. As in the instant
case, the penalty remained eclipsed for three years and if given effect to after three years would
mean that not only for the preceding three years after eclipse was over but even for the next
two years the delinquent would be ineligible to be considered for promotion and further when
he would become eligible to be considered for promotion, for the next five years the penalty
would stand in his way. This may borderline on double jeopardy, though not strictly a case of
double jeopardy.

14. Thus, the distinction between an order's existences de jure and de facto has to be kept in
mind. For and in relation to penalty order of the kind we are dealing we hold that for purposes
of giving effect to the penalty a hiatus has to be drawn qua the factum of the increments to be
stopped and the existence of the penalty order for purposes of other service related issues and
in particular consideration of the ACR record of the respondent at the DPCs post 2.5.2003. For
the purposes of DPCs post 2.5.2003 i.e. the date of the penalty order, the same has to be treated
as effective from 2.5.2003 which would be the date wherefrom two years would reckon as a
bar to consider the candidature of the respondent for further promotion; and beyond two years
of 2.5.2003, such DPCs which have to consider the preceding five year ACR record would
take into account the penalty if the year 2003 is a part of the preceding five years' period. Thus,
the de facto coupled with de jure implementation of the penalty order, in harmony with the
Doctrine of Eclipse, would require the penalty to be given effect to after the eclipse was over
and the penalty order resurrected and for which we hold that the two increments which the
respondent has to forfeit would be the ones which he had earned on the dates after 21.4.2006.

15. We would be failing if we do not note two decisions cited by learned counsel for the
respondent, being 2005 (1) SCC 705 Atma Ram Properties Pvt. Ltd. vs. Federal Motors Pvt.
Ltd. And 1997 (5) SCC 772 UOI & Ors. vs. Delhi Cloth & General Mills Co. Ltd. & Anr.
Which hold that upon vacation of an interim stay, the parties must be relegated to the same
position in which they would have been, but for the stay. The said decisions operate in the
realm of the jurisprudence of restitution inasmuch as the decisions contemplate the restitution
of the party against whom an interim order was obtained; to be placed in the same position as
it would have been but for the interim stay. Surely, the said decisions have no applicability qua
the person who has obtained the stay and upon losing the battle finds himself in a somewhat
watery situation.

16. Accordingly, we dispose of the writ petition setting aside the impugned order dated
25.3.2009 and dispose of OA No.580/2008 holding that the respondent is not entitled to the
opening of the sealed cover containing recommendations pertaining to him when the DPC met
during currency of the departmental proceedings. The penalty levied upon the respondent
would be given effect to as per our observations in para 14 above. We clarify that if vacancies
to the higher posts fell vacant and DPCs met post 2006, the candidature of the respondent
would be considered by convening Review DPC for the year in question and the DPC would
be entitled to take into account the penalty levied upon the respondent by treating the same to
be levied in the year 2003. We clarify that our reason for not requiring any DPCs to be
convened pre 2006 is the fact that for two years post 2003 the respondent would not even be
33
eligible to be considered for promotion. Needless to state, if as a result of any Review DPC,
the respondent is to be promoted he would not be entitled to any back-wages for the reason he
has not shouldered the responsibilities of the higher post.

Union of India and Another vs Kunisetty Satyanarayana on 22

November, 2006
This appeal has been filed against the impugned judgment and order dated 22.3.2006 of the
Andhra Pradesh High Court in Writ Petition No. 7409 of 2004.

Heard learned counsel for the parties and perused the record.

The respondent was initially appointed as a Clerk in the Postal Department of the Union of
India on 30.11.1965 on the basis of the marks obtained by him in the SSLC Examination. The
SSLC certificate of the respondent indicated that he belongs to the 'Konda Kapu' community
which is admittedly a Scheduled Tribe community in the State of Andhra Pradesh.

Thereafter the respondent appeared for a departmental test for promotion to the post of Upper
Division Clerk against a post reserved for the Scheduled Tribe community, and the respondent
was promoted as an Upper Division Clerk in Scheduled Tribe category. His promotion order
specifically stated that he has been promoted as an Upper Division Clerk under Scheduled
Tribe category vide promotion order dated 27.12.1976. Thereafter, in 1987, he was further
promoted to the next higher post, i.e. LSG cadre, again on a post reserved for Scheduled Tribe
category.

On 28.11.1994, a show-cause notice was issued to the respondent to show cause as to whether
he obtained employment on forged caste certificate. In reply to the said show-cause notice, the
respondent admitted that he does not belong to 'Konda Kapu' community, but he belongs to
'Kapu' community which is not a Scheduled Tribe community. The respondent in reply to the
show-cause notice also stated that it was wrongly mentioned in the SSC register that he belongs
to 'Konda Kapu' community on the basis of a declaration given by his illiterate father who got
the respondent admitted in school when he was 11 years old.

By order dated 3.1.1995, the Assistant Post Master General directed that the respondent be
treated as 'OC' community and accordingly an alteration was made in the respondent's Service
Book stating that he belongs to 'OC' community.

On 11.7.1997, the competent authority i.e. Collector of Hyderabad District passed an order
stating that the respondent obtained an ST caste certificate from the Mandal Revenue Officer
although he does not belong to 'Konda Kapu' community, but he belongs to 'Kapu' community,
which is not a Scheduled Tribe community. Hence, the Collector ordered cancellation of the
caste certificate of the respondent and requested the Chief Post Master General, A.P. Circle to
take action against the respondent vide order dated 11.7.1997.

34
Aggrieved against that order, the respondent filed an appeal before the State Government
which was disposed of on 17.2.2001 holding that the respondent does not belong to Scheduled
Tribe community and he cannot be considered as such, and the Postal Department may take
appropriate disciplinary action against the respondent.

Consequently a Charge Memo dated 23.12.2003 was issued to the respondent framing the
following charges against him:

"That he, while working as T/S Clerk in the Secunderabad Postal Division, appeared for the
examination held on 19.9.76 for promotion to UDC against a post reserved for 'ST' community
and subsequently he was also promoted to LSG Cadre based on the said reservation. However,
as per G.O. Ms No. 28 dated 17.02.2001 the Government of A.P. declared that Sri K.
Satyanarayana does not belong to Konda Kapu as declared by him and as such not entitled for
the reservation under the ST category.

That Shri K. Satyanarayana availed reservation against ST in the promotional post though he
does not belong to the said category and as such failed to maintain absolute integrity and acted
in a manner unbecoming of a government servant contravening the provisions of Rule 3(1) (i)
& (iii) of the CCS (Conduct) Rules, 1964. The statement of imputations gives the details of
the reservation availed by the petitioner during his service."

Instead of replying to the aforesaid Charge Memo, the respondent filed an OA before the
Central Administrative Tribunal, Hyderabad which was disposed of vide order 15.3.2004 with
the direction to the applicant to submit his reply to the Charge Memo dated 23.12.2003 and on
submission of the said reply the Disciplinary Authority should consider the same. Instead of
filing any reply the respondent filed a Writ Petition in the High Court which has been allowed,
and hence this appeal.

In our opinion, the High Court was not justified in allowing the Writ Petition.

It is well settled by a series of decisions of this Court that ordinarily no writ lies against a
charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs.
Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd.
Ghulam Ghouse and anotherAIR 2004 SC 1467, Ulagappa and others vs. Divisional
Commissioner, Mysore and others 2001(10) SCC 639, State of U.P. vs. Brahm Datt Sharma
and another AIR 1987 SC 943 etc. The reason why ordinarily a writ petition should not be
entertained against a mere show-cause notice or charge-sheet is that at that stage the writ
petition may be held to be premature. A mere charge-sheet or show-cause notice does not give
rise to any cause of action, because it does not amount to an adverse order which affects the
rights of any party unless the same has been issued by a person having no jurisdiction to do so.
It is quite possible that after considering the reply to the show-cause notice or after holding an
enquiry the authority concerned may drop the proceedings and/or hold that the charges are not
established. It is well settled that a writ lies when some right of any party is infringed. A mere
show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final

35
order imposing some punishment or otherwise adversely affecting a party is passed, that the
said party can be said to have any grievance.

Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article
226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.

No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or
show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it
is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.

Learned counsel for the respondent submitted that the charge against the respondent had
already been enquired into earlier and he had been exonerated of the charge in an earlier
proceeding. Hence, he contended that the impugned Charge Memo would amount to double
jeopardy and was therefore illegal. He relied upon the decision of this Court in Lt. Governor
Delhi and others vs. HC Narender Singh 2004 (13) SCC 342.

We agree with the learned counsel for the respondent that if the charge which has been levelled
under the Memo dated 23.12.2003 had earlier been enquired into in a regular enquiry by a
competent authority, and if the respondent had been exonerated on that very charge, a second
enquiry would not be maintainable. However, in the present case, we are of the opinion that
the charges levelled against the respondent under the Charge Memo dated 23.12.2003, had not
been enquired into by any authority and he had not been exonerated on those charges. Hence
we are of the opinion that it is not a case of double jeopardy.

In fact, the contention of the respondent was carefully examined by the Central Administrative
Tribunal in paragraph 5 of its order dated 15.3.2004.

In the present case, in the earlier proceedings no finding had been recorded that the respondent
had not availed of the benefit of belonging to the Scheduled Tribe community for any of the
promotions given to him. In fact, the authority was satisfied that he gained initial entry into
service as an 'OC' candidate and not as a Scheduled Tribe candidate. However, it seems that
his subsequent promotions were against posts reserved for Scheduled Tribe Community, to
which he did not belong. While disposing of the appeal filed by the respondent against the
order of the District Collector, Hyderabad, the State Government referred the matter to the
employer to take disciplinary proceedings after verifying of the records for production of false
Caste certificate. It appears that the respondent availed of the benefit of Scheduled Tribe
community for getting two promotions one as UDC and another as LSG Clerk, on the ground
that he belongs to Scheduled Tribe community, and it is for these reasons that the authorities
issued the impugned Charge Memo dated 23.12.2003. Hence, we are of the opinion that ratio
of the decision in Lt. Governor Delhi and others (supra) has no application in the present case.

For the foregoing reasons, we are of the opinion that the impugned judgment of the High Court
is not correct and the same is set aside. We fully agree with the view taken by the Central
Administrative Tribunal vide its order dated 15.3.2004. The respondent is now directed to
submit his reply to the Charge Memo dated 23.12.2003 within three weeks from today and the

36
authority concerned should decide the same expeditiously in accordance with law, and
thereafter take appropriate legal action in pursuance of the said decision, after giving an
opportunity of hearing to the respondent.

The appeal is allowed. There shall be no order as to costs.

Narandas Paramanand Das vs Income-Tax Officer And Ors. on 7

February, 197212
1. This rule is directed against a notice under Section 274 read with Section 271 of the Income-
tax Act, calling upon the petitioner to show cause why an order imposing a penalty should not
be made, for the petitioner without reasonable cause failed to furnish the return which the
petitioner is required to furnish by a notice given under Section 22(1)/22(2)/34 of the Indian
Income-tax Act, 1922, or which the petitioner is required to furnish under Section 139(1) or
by a notice given under Section 139(2)/148of the Income-tax Act, 1961, or have without
reasonable cause failed to furnish it within the time allowed and in the manner required by the
said Section 139(1) or by another notice asking the petitioner why a penalty should not be
imposed for failure to pay the advance tax as required under the law. The petitioner is a
partnership firm. The petitioner applied for registration of the firm but it was not allowed. The
petitioner appealed against the order of refusal to grant registration under the provisions of
the Income-tax Act. The said appeal, it is alleged, is still pending. For the assessment year
1963-64, respondent No. 1 assessed the total income of the petitioner at a sum of Rs. 6,56,260
during the year as a non-registered firm. Thereafter, by a subsequent order under Section 154 of
the said Act, respondent No. 1 rectified the original order of assessment and enhanced the
figure of the total income from Rs. 6,56,260 to Rs. 6,66,760. The petitioner stated that the time
for furnishing the return for the assessment year 1963-64 was 30th June, 1963. Thereafter, the
petitioner made an application in the prescribed Form No. VI on 11th June, 1963, for extension
of the said period to file the return but, it is alleged, that no communication was made to the
petitioner allowing any extension. The petitioner, however, filed the return on 23rd May, 1967,
showing an income of Rs. 1,17,217.50. Thereafter, on 14th September, 1967, a revised return
was filed showing an income of Rs. 38,208.53. It is alleged that because of. the alleged default
for not filing the return within the time, that is, before 31st December, 1963, the Income-tax
Officer charged penal interest at the rate of 6% under Section 139(1)(b)(iii) of the Act. The
penal interest, it is alleged, charged amounted to Rs. 87,020. Thereafter, the original order of
assessment for the said year was passed. The petitioner stated that the penal interest under the
provision of Section 139(1)(b)(iii) was charged on the petitioner for the defaulter-assessee not
as a registered firm but on the hypothetical amount assessed on the income of the defaulter-
assessee as it was an unregistered firm. Thereafter, the petitioner was served with a notice
under Section 274 read with Section 271 of the Act for the penalty proceedings. Being
aggrieved by the said notices, the petitioner moved this court and obtained the present rule.

12
1975 98 ITR 453 Cal

37
2. Affidavit has been filed by the respondent stating inter alia, that the petitioner applied for
extension of time to file the return after 30th September, 1969. Thereafter, no application was
made. On the application by Form No. VI the petitioner was given extension till 30th
September, 1964, as prayed for but no further time was asked for. The petitioner, it is alleged,
became a defaulter within the meaning of Section 271(1)(b) of the Act after 30th September,
1964. It is further alleged that the interest was charged, however, with effect from 1st January,
1964, from the petitioner on the assessed amount under the proviso to Section 139. It is further
stated that the said amount of interest cannot be said to be a penal interest, but is only a liability
under the statute itself. It is denied that the charging of interest under Section 215 and initiation
of penalty proceedings under Section 273 of the Act will be a case of double jeopardy. In reply
to the affidavit-in-opposition the petitioner reiterated the statement and contention made in the
petition.

3. Mr. Sanjay Bhattacharjee on behalf of the petitioner contended that Section 139 of the
Income-tax Act, 1961, is similarly worded as Section 22 of the Indian Income-tax Act, 1922.
It is argued by Mr. Bhattacharjee that Section 139(1) of the 1961 Act is identically worded
as Section 22(1) of the 1922 Act. Section 139(2) corresponds to 22(2) of the old Act,
and Section 139(3) to 22(2A) of the old Act Section 139(4), (5), (6) are more or less similar
to Section 22(3) and (5) of the old Act. Mr. Sanjay Bhattacharjee argued that Section 22(3) is
nothing but a proviso to Section 22(1) and (2) and as such if the return is filed before the
assessment is completed then it cannot be said that the return was filed out of time; and,
therefore, the notice under Section 148 is without jurisdiction. Mr. Bhattacharjee relied on the
cases, Commissioner of Income-tax v. Kulu Valley Transport Co. P. Ltd., and S.C. Prashar v.
Vasantsen Dwarkadas, . Mr. Bhattacharjee further contended that if the penal interest is levied
under Section 139, the respondent cannot initiate proceedings under Section 271 for penalty
inasmuch as it amounts to double jeopardy.

4. Mr. Sen Gupta on behalf of the revenue contended that the assessment proceeding and
penalty proceeding are parallel proceedings. The argument of Mr. Sen Gupta is that the interest
on the assessed amount is not penal interest. The interest is to be paid by the petitioner because
he did not file the return within the time allowed by the Income-tax Officer under Section
139(1) or (2) and a penalty proceeding is attracted if the assessee does not file a return within
the time allowed under Sub-sections (1) and (2) by the Income-tax Officer. If return has not
been filed within the time allowed by the Income-tax Officer the penalty proceeding
under Section 271 can be initiated. Mr. Sen Gupta referred to Gursahai Saigal v. Commissioner
of Income-tax, [1963] 48 ITR (SC) 1 and Jain brothers v. Union of India, in support of his
contention.

5. Section 22 of the old Act of 1922 and Section 139 in so far as subsection (1) of Section 5 is
concerned is more or less similarly worded. It appears that in Kulu Valley Transport case
referred to by Mr. Bhattacharjee the assessee filed the return under Section 22(3) of the old
Act, that is, before the assessment order was made. In Commissioner of Income-tax v. Kulu
Valley Transport Co. P. Ltd. the facts are that in January, 1956, the respondent filed voluntary
returns disclosing loss for the assessment years 1953-54 and 1954-55, and the question raised
in that case is whether the loss had to be determined under Section 24(2) of the Indian Income-
38
tax Act, 1922, though the returns were not filed within the time specified in the general notice
under Section 22(1) and the time was not extended by the Income-tax Officer. It is also clear
from the facts that no notice had been served on the assessee under Section 22(2) of the Act.
In deciding the point raised, the Supreme Court held at page 529 as follows :

" Now, the question which was submitted for the opinion of the High Court, in the present
case, consisted of two parts, viz., (1) whether the loss returned by the assessee for the
assessment years in question was required in law to be determined by the Income-tax Officer,
and (2) whether those losses could be carried forward after being set off under Section 24(2) of
the Act. The first part of the question stood concluded by the decision of this court in
Ranchhoddas Karsondas case, . The Income-tax Officer could not have ignored the return and
had to determine those losses. Section 24(2) confers the benefit of losses being set off and
carried forward and there is no provision in Section 22 under which losses have to be
determined for the purpose of Section 24(2). The question which immediately arises is
whether Section 22(2A) places any limitation on that right. This sub-section which has been
reproduced before simply says that in order to get the benefit of Section 24(2) the assessee
must submit his loss return within the time specified by Section 22(1). That provision must be
read with Section 22(3) for the purpose of determining the time within which a return has to
be submitted. It can well be said that Section 22(3) is merely a proviso to Section 22( I). Thus,
a return submitted at any time before the assessment is made is a valid return. In considering
whether a return made is within time Sub-section (1) of Section 22 must be read along with
Sub-section (3) of that section. A return, whether it is a return of income, profits or gains or of
loss, must be considered as having been made within the time prescribed if it is made within
the time specified in Section 22(3). In other words, if Section 22(3) is complied with, Section
22(1) also must be held to have been complied with. It compliance has been made with the
latter provision the requirements of Section 22(2A) would stand satisfied. "

6. Mr. Bhattacharjee, on the basis of this case contended that if, therefore, the return is filed
under Section 139 before the assessment is made, then initiation of proceeding under Section
271 cannot at all be made because it cannot be said that the assessee has failed to file the return
under Section 139(1)of the Act, as Section 139(4) and (5) is only a proviso to Section
139(1) and (2). In my opinion, the Supreme Court does not come to that conclusion whatsoever
in so far as the penalty proceeding is concerned. It is quite clear that under Section 271 of the
new Act the penalty proceeding can be initiated on the petitioner's failure to file the return
within the. time allowed under Section 139(1) and 139(2) of, the Act. Under Section 139(1) if
the assessee makes an application in Form VI, the Income-tax Officer may extend the date for
furnishing the return but he can extend the said time up to 31st of December of the year without
charging any interest and, beyond that, the interest on the assessed amount will be under the
statute itself leviable. In the matter of penalty proceeding, if the Income-tax Officer has given
extension of time, the penalty proceeding cannot be initiated but if no such extension is made
or if the return has been; filed beyond the time allowed by the Income-tax Officer, the penalty
proceeding can be initiated by the Income-tax Officer and it cannot be said that they are without
jurisdiction. The view I take, in my opinion, is supported by the principle laid down by the
Supreme Court in the case of Gursahai Saigal v. Commissioner of Income-tax. It is true that
in Gursahai Saigal v. Commissioner of Income-tax, the Supreme Court was only considering
39
the provision of Section 18of the old Act. It has been stated that under Section 18A if an
assessee fails to submit the return, by Section 18A(3) of the Indian Income-tax Act, 1922, the
interest under Section 18A(8) is chargeable. Under Sub-section (8) of Section 18A the interest,
for which liability is created, has to be calculated by a certain manner provided. In dealing
with the said provision and in particular Sub-sections (6) and (9), the Supreme Court held that
the penalty under Sub-section (9) of Section 18A is an addition to the liability which is not a
penalty and is leviable under Sub-section (6) to Section 18A. In my opinion that principle
applies in all force to the facts of the present case. If the assessee did not apply under Section
139(1) for extension of time to the Income-tax Officer and unless the Income-tax Officer
extends the time on such application the interest will be charged. The Income-tax Officer has
power to extend the time without charging any interest up to 31st December of the year but
beyond that period, the Income-tax Officer has no power to exempt the assessee from paying
interest in respect of the assessed amount. The said provision is a provision for calculation of
the interest and it cannot be said to be a penal interest as it has been argued by Mr.
Bhattacharjee. the penalty proceeding is a quite different proceeding. The condition precedent
for the initiation of penalty proceeding is that the petitioner did not file the return within the
time allowed under Section 139(1). Under Section 139(1) and (2), even if an assessee did not
file the return within the time granted by the Income-tax Officer, but filed the return before the
assessment proceeding came to a conclusion under Section 143(3), it cannot be said that he
has filed the return within the time allowed by the Income-tax Officer, by Section 139(1) or
(2). The case of Commissioner of Income-tax v. Kulu Valley Transport Co. P. Ltd.2 does not
go to the extent that the penalty proceeding cannot be initiated if return is filed before
assessment. It only held that the assessee can before the assessment is completed file the return
but the said case cannot be said to have laid down that Section 271 proceeding cannot be taken
if such return is filed before assessment is completed.

7. Mr. Bhattacharjee's next argument is that as soon as the penal interest is levied on the
assessed amount, a proceeding under Section 271 cannot be taken. I have already held that
interest under Section 139 is a liability under Section 139, proviso (iii), and that it is not by
way of penalty in the real sense of the term as has been held by the Supreme Court in Gursahai
Saigal v. Commissioner of Income-tax. The legislature has made a distinction about the interest
which is to be paid under the statute itself under Section 139, proviso (iii), and the penalty
proceeding under Section 271 of the Act. Section 271 of the Act only comes into play if the
income-tax authority is satisfied that without reasonable cause the assessee has failed to furnish
return of the total income which the assessee is required to furnish under Section 139(1) or (2)
or under Section 148 or has failed to file it within the time allowed and in the manner required
by Sub-section (1) of Section 139. It is quite clear that failure to furnish return within the
extended time means the time allowed by the Income-tax Officer and that time can be allowed
only on an application by the assessee concerned. It appears in the facts of this case that an
application was made by the petitioner in Form No. VI and time was allowed up to 30th
December, 1964, but the assessee filed the return some time in 1967. In the circumstances,
therefore, in my opinion, the notice under Section 271 cannot be said to be without jurisdiction
or prima facie invalid.. The rule is, therefore, discharged. All interim orders are vacated. There
will be no order as to costs.

40
 Commissioner Of Income-Tax vs Ram Chandra Singh on 11
November, 197413

1. At the instance of the Commissioner of Income-tax, Bihar, Patna, these two references
under Section 256(1) of the Income-

Tax Act, 1961 (hereinafter referred to as "1961 Act"), has been made by the Income-tax
Appellate Tribunal, Patna Bench, for decision of the following question of law :

"Whether, on the facts and circumstances of the case, the levy and demand of penalty
under Section 273(b) of the Act of 1961 on the basis of the reassessment under Section 34 of
the Act of 1922 after giving deduction for penalty levied under Section 18A(9) of the Act of
1922 on the basis of the original assessment under Section 23(3) of the Act of 1922 is legal
and valid ?"

2. The relevant facts of Tax Case No. 22 of 1970 are these. For the assessment year 1957-58,
Sri Ramchandra Singh, the assessee, was for the first time assessed on a total income of Rs.
70,500. After the completion of the assessment, the Income-tax Officer imposed a penalty of
Rs. 5,000 under Section 18A(9) read with Section 28(1)(c) of the Indian Income-tax Act, 1922
(hereinafter referred to as "1922 Act"). The penalty was imposed because the assessee had not
filed an estimate of his income under section 18A(3). When the matter finally went up in appeal
to the Appellate Tribunal, the quantum of penalty was reduced to Rs. 1,000. Subsequently, the
Income-tax Officer proceeded to reopen the assessment under Section 34 of the 1922 Act. He
assessed Sri Ramchandra Singh on a total income of Rs. 98,110 which was later on reduced
by the Appellate Assistant Commissioner by Rs. 19,704 on appeal by the assessee. In view of
the fresh assessment, the Income-tax Officer again started a proceeding against the assessee
under Section 18A(9) for non-filing of the estimate of his income as required under Section
18A(3) The Income-tax Officer thereafter levied a penalty of Rs, 1,600 on the assessee. When
the matter was taken up before the Appellate Assistant Commissioner, be was of the view that
for the same default the assessee could not be penalised twice over. He, therefore, vacated the
order of the Income-tax Officer levying the revised penalty on the assessee. The revenue came
up in appeal before the Tribunal. The Tribunal held that the Appellate Assistant Commissioner
was justified in cancelling the penalty and confirmed his order. The Commissioner of Income-
tax thereupon filed an application before the Tribunal for making a reference under Section
256(1) of the 1961 Act, and the reference has been made accordingly.

3. The relevant facts of Tax Case No. 26 of 1970 are these. For the assessment year 1957-58,
Sri Jeet Bahadur Singh, the assessee, was assessed for the first time on a total income of Rs.

13
1976 104 ITR 77 Patna

41
68,213. After the completion of the assessment, the Income-tax Officer imposed a penalty of
Rs. 4,800 under Section 18A(9) read with Section 28(1)(c) of the 1022 Act, because the
assessee had not filed an estimate of his income as required under Section 18A(3). When the
matter went up in appeal before the Appellate Tribunal, the quantum of penalty was reduced
to Rs. 1,000. Subsequently, the Income-tax Officer reopened the assessment under Section
34 of the 1922 Act. He assessed Sri Jeet Bahadur Singh on a total income of Rs. 95,625. The
amount was subsequently reduced by Rs, 19,704, on appeal by the assesses, by the Appellate
Assistant Commissioner; In view of the fresh assessment made on the assessee, the Income-
tax Officer initiated a proceeding under Section 18A(9) for non-filing of the estimate as
required under Section 18A(3) of the 1922 Act. The Income-tax Officer thereafter levied a
penalty of Rs. 1,450 on the assessee. When the matter was taken in appeal before the Appellate
Assistant Commissioner, he was of the view that for the same default the assessee could not
be penalised twice over. He, therefore, vacated the order of the Income-tax Officer levying the
revised penalty on the assessee. The revenue went up in appeal before the Tribunal. The
Tribunal, agreeing with the Appellate Assistant Commissioner, dismissed the appeal. The
Commissioner of Income-tax thereafter made an application before the Tribunal for making a
reference under Section 25C(1) of the 1961 Act and accordingly the reference has been made.

4. It may be stated at the outset that before the Appellate Assistant Commissioner as well as
before the Tribunal a contention was raised on behalf of the two assessees that the rule of
double jeopardy would be applicable in their cases, and they could not be penalised twice for
the same offence. The Appellate Assistant Commissioner and the Tribunal accepted this
contention on behalf of the assessees and took the view that the rule of double jeopardy was
applicable on the facts of the two cases and the assessees could not be penalised twice for the
same offence. In my opinion, both the Appellate Assistant Commissioner and the Tribunal
have given a wrong approach to the matter. The rule of double jeopardy applies to criminal
cases and that rule cannot be made applicable in respect of penalties for the various defaults
under the taxation statute. The point, however, which falls for consideration is whether any
penalty could be imposed upon the assessee for non-submission of returns on the basis of
reassessment under Section 34 of the 1922 Act or under Section 147 of the 1961 Act, In order
to decide this question it will be necessary to refer to some of the provisions of the 1922 Act
us well as of the 1961 Ant. Section 18A of the 1922 Act was inserted by Act 11 of 1944, Sub-
section (3) of section 18A read as follows :

"Any person who has not hitherto been assessed shall, before the I5th day of March in each
financial year, if his total income of the period which would be the previous year for an
assessment for the financial year next following is likely to exceed six thousand rupees, send
to the Income-tax Officer an estimate of the tax payable by him on that part of his income to
which the provisions of Section 18 do not apply of the said previous year calculated in the
manner laid down in Sub-section (1), and shall pay the amount, on such of the dates specified
in that sub-section as have not expired, by instalments which may be revised according to the
proviso to Sub-section (2)."

5. Sub-section (9) of section 18A which made provision for imposition of penalty for failure
to furnish particulars of income reads thus:
42
"If the Income-tax Officer, in the course of any proceedings in connection with the regular
assessment, is satisfied that any assessee-

(a) has furnished under Sub-section (2) or Sub-section (3) estimates of the tax payable by him
which he knew or had reason to believe to be untrue, or

(b) has without reasonable cause failed to comply with the provisions & of Sub-section (3),
the assessee shall be deemed, in the case referred to in Clause (a), to % have deliberately
furnished inaccurate particulars of his income, and in the case referred to in Clause (b), to have
failed to furnish the return of his total income; and the provisions of Section 28, so far as may
be, shall apply accordingly:

Provided that the amount of penalty leviable shall, in the case referred to in Clause (a), be a
sum not exceeding one-and-a-half times the amount by which the tax actually paid during the
year under the provisions of this section falls short of the tax that should have been paid by the
assessee under Sub-section (1) or eighty per cent, of the tax determined on the basis of the
regular assessment as modified in the manner provided in Sub-section (6), whichever is the
less, and, in the case referred to in Clause (b), one-and-a-half times the said eighty per cent."

6. It will be noticed that the words "regular assessment" have been used in Sub-section (9)
of section 18A. The expression "regular assessment" has not been defined in Section 2 of the
1922 Act. It is, however, manifest from the provision of Sub-section (5) of section 18A that
"regular assessment" means assessment under Section 23 of that Act. I may now refer to the
relevant portion of Section 34of the 1922 Act. Sub-section (1) of Section 34 reads as follows.

(a) the Income-tax Officer has reason to believe that by reason of the omission of failure on
the part of an assessee to make a return of his income under Section 22 for any year or to
disclose fully and truly all material facts necessary for his assessment for that year, income,
profits or gains chargeable to income-tax have escaped assessment for that year, or have been
under-assessed, or assessed at too low a rate, or have been made the subject of excessive relief
under the Act, or excessive loss or depreciation allowance has been computed, or

(b) notwithstanding that there has been no omission or failure as mentioned in Clause (a) on
the part of the assessee, the Income-tax Officer has in consequence of information in his
possession reason to believe that income, profits or gains chargeable to income-tax have
escaped assessment for any year, or have been under-assessed, or assessed at too low a rate, or
have been made the subject of excessive relief under this Act, or that excessive loss or
depreciation allowance has been computed, he may in cases falling under Clause (a) at any
time within eight years and in cases falling under Clause (b) at any time within four years of
the end of that year, serve on the assessee, or, if the assessee is a company, on the principal
officer thereof, a notice containing all or any of the requirements which may be included in a
notice under Sub-section (2) of Section 22 and may proceed to assess or reassess such income,
profits or gains or recompute the loss or depreciation allowance ; and the provisions of this
Act shall, so far as may be, apply accordingly as if the notice were a notice issued under that
sub-section:........."

43
7. It is clear from the above provision of Sub-section (1) of Section 34 that an assessment or
reassessment contemplated thereunder cannot be held to be a regular assessment. Similar
provision has been made in Section 147 of the 1961 Act. In Section 2(40) of this Act "regular
assessment" has been defined as assessment made under Section 143 or Section 144. Section
273 of the 1961 Act is similar to Section 18A(9) of the 1922 Act, and it reads as follows;

"If the Income-tax Officer, in the course of any proceedings in connection with the regular
assessment, is satisfied that any assessee-

(a) has furnished under Section 212 an estimate of the advance tax payable by him which he
knew or had reason to believe to be untrue, or

(b) has without reasonable cause failed to furnish an estimate of the advance tax payable by
him in accordance with the provisions of subsection (3) of Section 212, he may direct that such
person shall, in addition to the amount of tax, if any, payable by him, pay by way of penalty a
sum-

(i) which, in the case referred to in Clause (a), shall not be less than ten per cent, but shall not
exceed one and a half times the amount by which the tax actually paid during the financial
year immediately preceding the assessment year under the provisions of Chapter XVII-C falls
short of-

(1) seventy-five per cent, of the tax determined on regular assessment as modified under the
provisions of Section 215, or (2) where a notice under Section 210 was issued to the assessee,
the amount payable thereunder, whichever is less ; and

(ii) which, in the case referred to in Clause (b), shall not be less than ten per cent, but shall not
exceed one and a half times the amount on which interest is payable under Section 217."

8. It will be noticed that in Section 273 also the words "regular assessment" have been used. It
is clear from the various provisions of the 1922 Act as well as the 1961 Act that a penalty can
be imposed for non-furnishing of the estimate of advance tax only in connection with the
regular assessment under Section 23 of the 1922 Act or regular assessment under Section
143 or Section 144 of the 1961 Act. As the proceeding for assessment or reassessment
under Section 34 of the 1922 Act or under Section 147of the 1961 Act is not a proceeding in
connection with the regular assessment, no penalty can be imposed for non-furnishing of an
estimate of the advance tax payable by the assessee. I am fortified in my view by a Bench
decision of the Kerala High Court in Gates Foam & Rubber Co. v. Commissioner of Income-
tax, [1973] 90 ITR 422(Ker). On behalf of the revenue reliance was placed on the decision of
the Supreme Court in N.A. Malbary and Bros. v. Commissioner of Income-tax, [1964] 51 ITR
295 (SC). In that case the assessee was a firm which carried on business at Surat and had a
branch at Bangkok. In its return for the assessment year 1951-52, it did not include the profits
of the Bangkok business. It did not also comply with the notice of the Income-tax Officer for
the production of the accounts relating to the Bangkok branch. The Income-tax Officer
estimated ed the profits of the Bangkok branch at Rs. 37,500 and completed the the assessment

44
on January 31, 1952, and on the same day he initiated proceedings for the imposition of penalty
for concealment of income. The assessee offered its explanation, but its explanation was
rejected and a penalty of Rs 20,000 was imposed in January 22, 1954. In the meantime in the
assessment proceedings for the next year, the assesse produced the account books of the
Bangkok branch, which disclosed that the assesse had made a profit of Rs. 1,25.520 for the
assessment year 1951-52, The Income-tax Officer issued a notice under Section 34 of the 1922
Act in respect of the assessment year 1951-52 and the assesse submitted a return showing the
correct profits. The Income-tax Officer issued a notice under Section 28(3) and levied a second
penalty of Rs, 68,501 for concealment of income in the original return. The Appellate Tribunal
quashed the penalty of Rs. 20,000 but confirmed the penalty of Rs. 68,501. It was contended
that the second order imposing penalty was illegal because in respect of the same concealment
the Income-tax Officer had no jurisdiction to make the second order while the first stood. It
was held by the Supreme Court that the penalty under Section 28 had to be correlated to the
amount of tax which would have been evaded if the assessee had got away with the
concealment and when the Income-tax Officer ascertained the true facts and realised that a
much higher penalty could have been imposed he had jurisdiction to recall the earlier order
Imposing penalty on the basis of the estimated income and pass another order imposing the
higher penalty. It was further observed that the jurisdiction to make the second order was not
lost because he had omitted to recall the earlier order, although the two orders could not be
enforced simultaneously or stand together. In my opinion, the decision in that case is of no
assistance to the revenue because the facts were different and penalty had been imposed
under Section 28(3) of the 1922 Act and not under, Section 18A(9), which has a different
scope,

9. For the foregoing reasons, I answer the question in the negative, in favour of the assessees
and against the revenue. As the assessees have not appeared in the two references there will be
no order as to costs.

45
 Conclusion
The rule against Double Jeopardy stipulates that no one may be put in peril twice for the same
offence. It is a concept originated from “Natural Justice System” for the protection of integrity
of the “Criminal Justice System”. The concept of Double Jeopardy follows the “audi altermn
partum rule” which means a person cannot be punished twice for the same offence. But it is to
be noted that there are some restrictions too in the Indian laws related to Double Jeopardy.
Fundamental rights in the criminal justice process are not limited to those enumerated in
the text of the Constitution but have also been identified by the superior courts as unspecified
or unremunerated constitutional rights. While several provisions have been considered as
providing the constitutional basis for the common law double jeopardy principle, it is
submitted that Article 38.1 is the source of this right. However, in view of the fact that it is an
unremunerated right, it seems likely that the Oireachtas would be permitted to enact legislation,
or statutory provision, reforming the law on double jeopardy. This would empower the Court
of Criminal Appeal, with the possibility of an appeal to the Supreme Court, to review an
acquittal, which may be quashed and a retrial ordered where the Court is satisfied that there is
fresh and compelling evidence of the accused’s guilt or indeed where there has been a tainted
acquittal. The law on double jeopardy was not designed to provide absolute immunity
from prosecution but rather to prohibit unreasonable retrials by the State. However, it is
essential that prospective reforming legislation strike an appropriate and proportionate balance
between the fundamental rights of an accused in a criminal trial and the right of society to be
protected against serious crime.

In The State of Bombay v. S.L. Apte and anr. The Constitution Bench of this Court while
dealing with the issue of double jeopardy under Article 20(2), held: “To operate as a bar the
second prosecution and the consequential punishment there under, must be for “the same
offence”. The crucial requirement therefore for attracting the Article is that the offences are
the same i.e. they should be identical. If, however, the two offences are distinct, then
notwithstanding that the allegations of facts in the two complaints might be substantially
similar, the benefit of the ban cannot be invoked. 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 next point to be considered is as regards the scope
of Section 26 of the General Clauses Act. Though Section 26 in its opening words refers to
“the act or omission constituting an offence under two or more enactments”, the emphasis is
not on the facts alleged in the two complaints but rather on the ingredients which constitute
the two offences with which a person is charged. This is made clear by the concluding portion
of the section which refers to “shall not be liable to be punished twice for the same offence”.
If the offences are not the same but are distinct, the ban imposed by this provision also cannot
be invoked.”

46
 References

Websites
1. www.indiankanoon.org
2. www.wikipedia.com
3. www.jstor.org
4. www.legalservicesindia.com
5. www.gktoday.in
Books
1. K.D. Gaur
2. J.N. Pandey
3. Ratanlal & Dhirajlal

Law Journals
1. Lexisnexis
2. Manupatra
3. Westlaw

47