Double Jeopardy

Introduction

The roots of the doctrine of Double Jeopardy can be traced to the Latin maxim ‘Nemo debet bis vexari’ it means that ‘a man should not be put in twice for the same offence’. The Doctrine of Double Jeopardy was mentioned in Article 20(2) of Indian Constitution that No person shall be prosecuted and punished for the same offence more than once basically it means that it is a procedural defense that prevents an accused person from being tried again on the same charges and on the same facts, following a valid clearing or conviction.

Section 300 of CrPC also talks about double jeopardy but even better than Article 20(2) of Indian Constitution. It is also widely believed that Art. 20(2) of the Constitution only provide parliamentary gloss over a prevalent doctrine already incorporated within the Cr PC.

Origin of Double Jeopardy

This concept was first come into the Greek and Romans in 355 B.C in which the Governor will not allow the same person to be convicted again with a crime he was previously acquitted of. The doctrine of double jeopardy has been derived from the common source of Canon law by continental and the English systems. In the Roman law under Justinian Code this doctrine has been adopted.

It was the constitutional right is many countries such as United States, Canada, Mexico and India and on the international platform also, it has been recognized through various international documents. The clauses related to double threat were not discussed in the Magna Charta, nor can it be interpreted by implication.

Double Jeopardy in Indian Constitution

Double Jeopardy’s fundamental principle in the Constitution is that when a person is convicted by a competent court of an offence, the conviction acts as a restraint to any future judicial proceedings against him for the same crime. The idea is that no one ought to be punished twice for one and the same offence. When a person is again charged in a court for the same offence, he may plead his formal acquittal or conviction as a complete defense or, as legally specified, he may plead ‘autrefois acquit or autrefois convict’[1]. As the discussion revolves around the definition of Double Jeopardy as established in the Cr PC, it is clear that in Sec. 300 Cr PC the concepts of the previous acquit were present.

Protection against until convicted in India is a constitutional right, not a basic right. This defense is given in Code of Criminal Procedure not in the Constitution of India.

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 mentioned in the U.S. Constitution in the Fifth Amendment, which says that “no person shall be twice put in Jeopardy of life or limb.

Essentials of Double Jeopardy

  1. An individual must be charged with an offence. The term “offense” must be taken from the General Clauses Act, 1897 as meaning “an act or omission made punishable by any statute.”
  2. The investigation must have happened before a Judicial Court or a Tribunal.
  3. A person must have been punished in his previous crime.
  4. The offence must be the same in relation to previous crime.

Case Laws

The ambit of Article 20(2) has been defined via a wide range of case laws.

Bihar v. Murad Ali Khan[2] – In this case the Supreme Court held that the same act must constitute an offense under more than one Act in order for the prohibition to be applied under Article 20(2). When under two different enactments there are two distinct separate offenses with provisions, a double sentence is not barred.

Monica Bedi v State of Andhra Pradesh[3] – In this case, the Supreme Court ruled that a passport registered on a false identity was a double threat as a Portuguese court had already previously convicted her for possessing a fake passport.

Venkataraman v. Union of India[4] – In this case an investigation was made before the appellant’s commissioner of investigation under the Public Service Enquiry Act, 1960, and as a result he dismissed from the service. He was later prosecuted under Indian Penal Code & the Prohibition of Corruption Act for committing the crime then the court held that the enquiry commissioner’s investigation was simply an enquiry & was not a trial for an offence. Therefore, the second prosecution did not attract the Double Jeopardy doctrine or the defense granted under Article 20(2) of Fundamental Right.

Kalawati v State of Himachal Pradesh [5]– In this case a person was tried and found guilty for committing murder. The State recommended that the acquittal be challenged. The accused could not plead against the State that prefers an appeal against the acquittal under Article 20(2). Article 20(2) did not apply because in the earlier case, there was no punishment for the offence.

P.Dahiya vs. Union of India [6]– It was held that if the accused was not found guilty of the charges against him in the first trial, his new trial would not constitute a double threat and in the State of Rajasthan V Hat Singh it was stated that the prosecution and other punishment under two sections of the Act, the offenses under both sections being different from each other, are not double threats.

Maqbool Hussain v. State of Bombay[7] – In this case a person arrived at the airport from abroad. At that time possession of gold was against the law and he was found in possession of gold which was against the law. Action was taken against him by the customs authorities and the gold was seized. Later he was prosecuted before a criminal court under the Foreign Exchange Regulation Act. The Supreme Court came to the conclusion that the proceedings before the customs authorities did not constitute ‘prosecution’ of the appellant, and the fine levied on him did not constitute ‘punishment’ by a judicial tribunal. Under these cases, the appearance of the petitioner before the criminal court was not barred.

Comparison with other Countries

  1. Australia – Australian double jeopardy is very similar to other common law countries. While there is no constitutional protection against re-trials following acquittal, there have been few examples of statutory exceptions. Australian double jeopardy law was considered to apply to avoid punishment for perjury after a previous acquittal in which a finding of perjury would dispute the prior acquittal.
  2. United Kingdom – In the 2003 Criminal Justice Act introduced by then Home Secretary David Blunkett, the UK Parliament passed legislation to eliminate the previously strict form of double jeopardy ban in England. When there is ‘fresh and convincing proof,’ retrials are now permitted.
  3. United States – Fifth Amendment of U.S Constitution talks about the concept of Double Jeopardy. The Double Jeopardy provision forbids the State from ‘punishing’ twice or trying to criminally ‘punish’ for the same crime for a second time. There are three essentials included in Double jeopardy which was mentioned in U.S Constitution: protection from being retried for the same offense following acquittal; protection from retrial following conviction; and protection from repeated prosecution for the same offence.
  4. Germany – Article 103(3) of the Constitution of Germany clearly states the concept of double jeopardy which prohibits punishment for the same offense more than once in accordance with the general legislation.
  5. Japan – In Article 39 of Japan Constitution it was stated 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’.

Conclusion

While doing this article it was concluded that the rule of the Double Jeopardy mainly states that no one can charge twice for the same offence. The concept of Double Jeopardy comes from from “Natural Justice System” for the protection of integrity of the “Criminal Justice System”. Double Jeopardy follows the “audi altermn partum rule” which means that listen the other side. In a few lines the Constitution deals with the whole matter. These few lines have been talked over a lot, however, and the kind of judicial scrutiny this has earned is huge. Double Jeopardy law in India essentially protects a individual from various penalties on the basis of the same facts in a case where the elements of various prosecutions are related to those for which the accused was already prosecuted or acquitted by the court.

Frequently asked questions

  1. What is double jeopardy in the 5th amendment?
  2. Explain some case laws regarding to Double Jeopardy?
  3. What are the essentials of Double Jeopardy?
  4. In which article Japan gave the meaning of Double Jeopardy?
  5. When was the origin of Double Jeopardy?

 

References

  1. V.N. Shukla’s Constitution of India by Prof (Dr.) Mahendra Pal Singh, 13th Edition, Eastern Law Book
  2. http://www.legalservicesindia.com
  3. https://indiankanoon.org
  4. http://www.japaneselawtranslation.go.jp

[1] M. P. Jain, “Indian Constitutional Law”, Vol. I, 5th ed.,2003, p. 1238

[2] AIR 1989 SC 1; M.P. Jain, “Indian Constitutional Law”,2003, 5th ed., p. 1239

[3] 2011 1 SCC 284

[4] 1954 AIR 375, 1954 SCR 1150

[5] AIR 1953 SC 131

[6] (2003)1 SCC 122)

[7] AIR 1953 SC 325

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