It has been said that the history of double jeopardy is the history of criminal procedure. The rule is thought to have its origins in the controversy between Henry II and Archbishop Thomas a Becket that clerks convicted in the ecclesiastical courts were exempt from further punishment in the King's courts because such further punishment would violate the maxim (nimo bis in idipsum) no man ought to be punished twice for the same offence. This maxim stemmed from St Jerome's commentary in AD 391 on the prophet Nahum: For God judges not twice for the same offence". The rule later found expression in the common pleas autrefois convict and autrefois acquit. INTRODUCTION 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 laws 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. DOUBLE JEOPARDY IN INDIAN CONSTITUTION The basic premise of Double Jeopardy in the Constitution is that when a person has been convicted of an offence by a competent court, the conviction serves as a bar to any further criminal proceedings against him for the same offence. The idea is that no one ought to be punished twice for one and the same offence. If a person is indicted again for the same offence in a court, he can plead, as a complete defense, his formal acquittal or conviction, or, as it is technically expressed, he can take the plea of autrefois acquit or autrefois convict. Article 20 (2) of the Constitution which runs as, "No person shall be prosecuted for the same offence more than once", contains the rule against Double Jeopardy. The principle elaborated in the said article was inexistence in India even prior to the commencement of the Constitution. The ambit of Art. 20(2) is, however, narrower than the English or the American rule against Double Jeopardy. The Indian provision enunciated only the principle of autrefois convict and not the principle of autrefois acquit. This basically means that Art. 20 (2) can be invoked only when there has been prosecution and punishment in the first instance. However, later on in the project, when the discussion revolves around the concept of Double Jeopardy as ingrained in the Cr PC, one comes across the fact that the principles of autrefois acquit has been embedded in Sec. 300 Cr PC. The word prosecution as used in Art. 20 (2) embodies the following three essentials: There must be a person accused of an offence. The word 'offence' has to be taken in the sense in which it is used in the General Clauses Act.1897 as meaning "an act or omission made punishable by any law for the time being in force". The proceeding or the prosecution should have taken place before a 'court' or 'judicial tribunal'. The revenue authorities like the sea custom authorities, are not judicial tribunals. Likewise proceedings before a tribunal which entertains departmental or administrative enquiries cannot be considered as proceedings in connection with prosecution and punishment.
CAN DIFFERENT CHARGE CAN BE LAID FOR THE 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. 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 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. CONCLUSION: In every legal system there is provision for double jeopardy as no person should be punished twice for the same offence .Doctrine of double jeopardy is a right given to the accused to save him from being punished twice for the same offence and he/she can take plea of it. In different, cases it is interpreted in different manner due to the circumstances of the cases. Our Constitution also provides such right guaranteed under Fundamental Rights to safeguard the interest of the accused person. While interpreting the provision judges always keeps a watch that innocent does not gets punished. Finally, it can be concluded that it is a positive right provided to an individual.
LIST OF CASES: Roshan Lal & ors v. State of Punjab Maqubool Hussain Vs Bombay. S A Venkataraman Vs Union of India AA Mulla Vs Maharashtra Union of India .v. P.D. Yadav Jitendra Panchal v. Intelligence Officer N.C.B Kalawati & Another V. State of Himachal pradesh State of Rajasthan v. Hat Singh Connelly v Director of Public Prosecutions (UK) State of Bihar v. Murad Ali Khan State of Bombay v. S.L. Apte Thomas Dane v. State of Punjab