RIGHT AGAINST DOUBLE JEOPARDY

DOUBLE JEOPARDY IN INDIAN CONSTITUTION

In the Constitution, the fundamental principle of Double Jeopardy is that where a person has
been convicted by a competent court of an offence, the conviction acts as a bar for any further
criminal proceedings against him for the same offence. The principle is that no one should be
punished for the same crime twice.”1 “If a person is again charged in a court for the same
crime, he may plead his formal acquittal or conviction as a complete defense, or, as
technically expressed, he may take the plea of autrefois acquit or autrefois convict.”
Article 20 (2) of the Constitution says as, “No person shall be prosecuted for the same offence
more than once”, contains the rule against Double Jeopardy. As already mentioned in the
introduction to this project, the concept of non-existence in India, even before the start of the
Constitution, was established in that article.
However, the meaning of Article 20(2) is narrower than that of the English or American
Double Jeopardy Law. Only the concept of autrefois convict and not the principle of autrefois
acquit were enunciated in the Indian clause. This effectively implies that only when there has
been conviction and penalty in the first instance can Art. 20 (2) be invoked. Later in the
project, however, as the argument revolves around the notion of Double Jeopardy as
embedded in the Cr PC, one finds that the concepts of autrefois acquit have been embedded
in Sec. 300 Cr PC.
As used in Art. 20(2), the term prosecution embodies the following three essentials:
1. “There must be a person accused of an offence. The term offense must be taken in the
sense that it is used in the General Clauses Act.1897 to mean an act or omission
punishable for the time being by any law.”2
2. “A ‘court’ or ‘judicial tribunal’ should have taken place before the proceeding or the
prosecution. As the sea custom authorities, the tax authorities are not judicial
tribunals.”3
3. “Similarly, proceedings before a court that carries out departmental or administrative
inquiries cannot be treated as proceedings leading to prosecution and punishment.”4
“In the case of Thomas Dane v. State of Punjab, the proceedings should have been taken
before the judicial tribunal or court in reference to the law which creates the offences. Thus,

1
M. P. Jain, “Indian Constitutional Law”, Vol. I, 5th ed., 2003, p. 1238.
2
S. A. Venkataraman v. Union of India, AIR 1954 SC 375; V. N.Shukla, "Constitution of India", 10th ed., 2001,
rep. 2004, p. 156.
3
Maqbool Hussain v. State of Bombay, AIR 1952 SC 325.
4
ibid., p. 325.
where an enquiry is held before a statutory authority against a government servant, not for the
purpose of punishing for the offence of cheating and corruption but to advise the government
as to disciplinary action to be taken against him, it cannot be said that the person has been
prosecuted.”5 “Even if the authority doing the inquiry were expected to act judicially, that
will make no difference.”6
A broad variety of case laws have been used to describe the scope of Article 20(2). If a
person has been charged but convicted for an offence, then he can again be prosecuted and
punished for the same offence. In the case of Kalawati v. State of Himachal Pradesh,
Facts: one person named Kanwar Bikram Singh was a relation of Rana of kuthar. He was a
Zamindar. His place of residence on the plains was Manimajra in the Ambala District. He
married Kalawati, one of the two appellants, in 1938. Through a mistress, she was herself the
daughter of the late Raj of Nalagarh. During the early morning hours of July 16, 1951,
Kanwar Bikram Singh was murdered as he lay asleep on the roof of his Haveli or Bishanpura
mansion. There were many incised wounds on his person. The case for the prosecution is
that, with the support and connivance of Kalawati, Ranjit Singh, the other appellant, who was
a distant cousin of the deceased, committed the murder.
For the prosecution, it is claimed that the two appellants formed illicit intimacy with each
other and that they got rid of Kanwar Bikram Singh because he was cruel to Kalawati in his
actions. It is said that the last act of ill-treatment was on July 6th, when Kanwar Bikram
slapped his wife. Kalawati is said to have conspired with Ranjit Singh to do away with her
husband, unable to bear the continued humiliation at her husband's hands, and in the
expectation that her intrigue with Ranjit Singh will be facilitated.
Ranjit Singh has been convicted of murder under S. 302, Penal Code, and Kalawati were
charged in accordance with Ss. Penal Code, l14 and 302, with support for murder, which was
committed as a result. Ranjit Singh was found guilty of the crime by the Sessions Judge of
Mahsu and Sirmur and sentenced him to the severe punishment of the court. He acquitted
Kalawati of the firing offense under S. 302 with S read. 1 14, but, under S, found her guilty.
201, as she suppressed the evidence, the Penal Code screened Ranjit Singh, and gave false
information about the murder; and he sentenced her to rigorous imprisonment of five years.
The court stated that a person accused of committing murder was tried and acquitted. An
appeal against the acquittal was favoured by the state. The accused was not in a position to

5
Thomas Dane v. State of Punjab, AIR 1959 SC 375.
6
Leo Roy Frey v. Supdt., Distt. Jail, AIR 1958 SC 119; V. N.Shukla, "Constitution of India", 10th ed., 2001,
rep. 2004, p. 157.
plead Article 20(2) against the appeal. Article 20(2) does not apply because there was no
punishment in the earlier prosecution for the offence.
“In certain cases, the same collection of facts can constitute offences under two separate laws.
“In the case of the State of Bihar v. Murad Ali Khan, the Supreme Court held that in order for
the prohibition to apply under Article 20(2), the same act must constitute an offence under
more than one Act. If there are two distinct separate offences with ingredients under two
different enactments, a double punishment is not barred.”7
“In the case of State of Bombay v. S.L. Apte, Supreme Court explained the legal position as
follows:”8
“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.”9
“A restriction read in Article 20(2) is that the former ‘prosecution’ (which demonstrates that
the proceedings are of a criminal nature) must be brought before a court of law or a judicial
tribunal necessary by law to judicially determine matters in dispute on facts and on oath
which it must be allowed to administer by law, and not before a tribunal which, although
created by a statute, entertains a departmental or administrative enquiry, but is not necessary
to proceed with legal evidence provided on oath.”10
“In the case of Maqbool Hussain v. State of Bombay, An individual from abroad arrived at an
Indian airport. He was found to be in possession of gold, which at the time was against the
law. The customs authorities took action against him and the gold was seized. Later on, under
the Foreign Foreign Exchange Regulation act, he was prosecuted before a criminal court. The
question was whether it was possible to lift the plea of autrefois acquit pursuant to Art. 20.
(2).”11 “The Supreme Court came to the conclusion that the proceedings before the customs
authorities did not constitute ‘prosecution’ of the appellant, and the sentence levied on him

7
AIR 1989 SC 1; M.P. Jain, "Indian Constitutional Law",2003, 5th ed., p. 1239.
8
AIR 1989 SC 1
9
AIR 1961 SC 578; M.P. Jain, "Indian Constitutional Law",2003, 5th ed., p. 1239.
10
Ibid p. 1241.
11
AIR 1953 SC 325.
did not constitute ‘punishment’ by a judicial tribunal. The petitioner's trial in the criminal
court was not barred under these situations.”12 As follows, the Supreme Court noted:
“It is clear that in order that the protection of Art. 20 (2) be invoked by a citizen there must have
been a prosecution and punishment in respect of the same offence before a court of law or a
tribunal, required by law to decide the matters in controversy judicially on oath which it must be
authorized by law to administer and not before a tribunal which entertains a department or an
administrative enquiry even though set up by a statute but not required to proceed on legal
evidence given on oath.”13 “The very wording of Art 20 and the words used therein would
indicate that the proceedings therein contemplated are of the nature of criminal proceedings
before a court of law or a judicial tribunal and the prosecution in this context would mean an
initiation or starting of proceedings of a criminal nature before a court of law or a judicial
tribunal in accordance with the procedure prescribed in the statute which creates the offence and
regulated the procedure.”14
“The Supreme Court held that the customs authorities of the sea are not a judicial tribunal and
that the grant of a confiscation, a higher rate of duty or a penalty subject to the provisions of
the Sea Customs Act does not constitute a decision or an order of a court or a judicial tribunal
necessary to justify Double Jeopardy’s plea.”15
“In Thomas Dane v. State of Punjab, a case close to that of Maqbool Hussain, the appellant
requested the withdrawal from India of some foreign exchanges seized by the customs
authorities after due process under the Sea Customs Act had taken place. Later, under the
Foreign Exchange Regulation act and the Sea Customs Act, he was convicted before a
criminal court and he was duly convicted of the offence. Punjab’s High Court dismissed his
appeal.”16 “The appellant preferred filed a writ petition in the Supreme Court on the ground
that Art 20 (2) barred his prosecution. The Supreme Court dismissed the petition on the
ground that the authorities concerned acted judicially but did not constitute a court when
enforcing confiscation and penalty under the Sea Customs Act and the FERA.”17
“It is thus established that action taken by a quasi-judicial body does not bar a latter
prosecution before a court.” Thus, immunity against a second prosecution has become
confined to a situation when the first proceeding has been before a court of law. “The same

12
AIR 1953 SC 325.
13
AIR 1953 SC 325 at p. 327
14
AIR 1953 SC 325 at p. 327.
15
Ibid.
16
AIR 1959 SC 375.
17
Ibid.
will be the position when after ‘prosecution and punishment’ for an offence, further action is
taken by a quasi-judicial body.”18
DOUBLE JEOPARDY IN CRIMINAL PROCEDURE CODE
“In the Cr PC, the provision to prevent punishment for the same offence twice can be found under
Sec. 300.”19
Section 300 states;
(1) “A person who has once been tried by a Court of competent jurisdiction for an offence
and convicted or acquitted of such offence shall, while such conviction or acquittal remains
in force, not be liable to be tried again for the same offence, nor on the same facts for any
other offence for which a different charge from the one made against him might have been
made under sub-section (1) of section 221, or for which he might have been convicted under
sub-section (2) thereof.”20
(2) “A person acquitted or convicted of any offence may be afterwards tried, with the consent
of the State Government, for any distinct offence for which a separate charge might have
been made against him at the former trial under sub-section (1) of section 220.”
(3) “A person convicted of any offence constituted by any act causing consequences which,
together with such act, constituted a different offence from that of which he was convicted,
may be afterwards tried for such last-mentioned offence, if the consequences had not
happened, or were not known to the Court to have happened, at the time when he was
convicted.”
(4) “A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with, and tried for, any
other offence constituted by the same acts which he may have committed if the Court by
which he was first tried was not competent to try the offence with which he is subsequently
charged.”
(5) “A person discharged under section 258 shall not be tried again for the same offence
except with the consent of the Court by which he was discharged or of any other Court to
which the first-mentioned Court is subordinate.”
(6) “Nothing in this section shall affect the provisions of section 26 of the General Clauses
Act, 1897 or of section 188 of this Code.”21

18
Joginder Singh v. Bar Council of India, AIR 1975 Del. 192.
19
The Code of Criminal Procedure, 1973.
20
The Code of Criminal Procedure, 1973.
21
Section 300, The Code of Criminal Procedure, 1973.
Explanation – The dismissal of a complaint, or the discharge of the accused, is not an
acquittal for the purposes of this section.
Sec. 300 also tackles an inconsistency in the Constitution’s Art. 20(2), which deals with
Double Jeopardy. Sec. 300 requires acquittal as a bar to criminal trial, while Art. 20(2) only
mentions past convictions. Six sub-sections and six examples in Section 300 of the Criminal
Procedure Code deal thoroughly with the theory of Double Jeopardy. In fact, the Cr.P.C is
much more detailed than the Constitution’s Art. 20(2). Here’s an analysis of Section 300's
provisions.
Under Section 300 – Persons once convicted or acquitted not to be tried for the same offence,

1. “A person who has once been tried for 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.”
This section basically means,
a. An individual cannot be charged for the same crime after being convicted or acquitted
by a court of competent jurisdiction.
b. If an individual is charged under subsection (1) of Section 221 and the facts are the
same, and he is charged under subsection (2) of Section 221, he cannot be prosecuted
on the same facts. Of course, this is only valid if the conviction or acquittal is still in
place.
“The term “acquittal” has been described in negative terms for the purposes of Section 300 of
the CrPC, stating that the dismissal of a complaint or the discharge of the accused is not
acquittals.”22 This explanation has been used many times in different contexts. As an
illustration in E.K. Thankappan v. Union of India,23 and Ramasharama v. Pinki Sharma.24

22
Explanation to S. 300 Cr.P.C.
23
1989 (3) Crimes 656, 663 (Ker.); Ratanlal & Dhirajlal, “TheCode of Criminal Procedure”, 16th ed., 2002, rep.
2003, p. 88721 1997 (1) Crimes 48 (Cal); Ratanlal & Dhirajlal, "The Code of Criminal Procedure", 16th ed.,
2002, rep. 2003, p. 887.
24
1989 Cr LJ 2153 (Pat.); Ratanlal & Dhirajlal, "The Code of Criminal Procedure", 16th ed.,2002, rep. 2003, p.
887
In Krishna Sen Gupta v. Manjula Mukherjee,25 the aggrieved’s brother filed a complaint
under Section 494 of the Indian Penal Code. The accused, however, was discharged because
the complainant had not lodged a complaint. “The Calcutta High Court ruled that the
principle of double jeopardy would not prohibit the applicant from filing a second lawsuit for
the same crime. The reason for this reasoning is that the dismissal of a complaint or the
discharge of an accused person is not treated as a definitive judgment on the accused’s
innocence.”26
However, if a court mistakenly applies a provision of law, the order in effect will be
considered to be one based on the provisions of law relevant to the facts of the case. “The
order of discharge under Sec. 245 (2) must be read as an order of acquittal passed under Sec.
256 in a summons case where the Magistrate passed an order of discharge under Sec. 245 (2)
due to the absence of the complaint.”27
Also, in Sec. 300 (1), the term “tried” does not mean “tried on the merits”. In the case of
Kashigar Ratangar v. State of Gujarat,28 “the public prosecutor's withdrawal from the case
under Sec. 321 Cr PC resulted in the accused’s acquittal despite the fact that the case was not
tried on the merits. An acquittal like this will preclude the accused from being charged again
on the same charges in the future.”29
When it comes to the term “tried,” there are two points of view. According to one opinion,
the accused must appear in court when called before the trial can be said to have commenced.
The other point of view is that if the court has taken cognizance of a complaint or a criminal
case and issued process for the accused to appear, it has started the trial process and is
conducting proceedings in the nature of a trial. Much as it is important to determine the
competence of the court that tried the earlier case under Art 20 (2), it is also necessary for the
accused to establish that he has been tried by a competent court in order to benefit from the
rule contained in Sec. 300 Cr.P.C.
However, the term “competent court” to try an offence should not be interpreted too broadly
to require just consideration of the court's status or character. “However, when assessing
competence, it is therefore important to consider whether the court, while being otherwise
competent to try the case, may not have done so because those prerequisites for exercising

25
1997 (1) Crimes 48 (Cal); Ratanlal & Dhirajlal, "The Codeof Criminal Procedure", 16th ed., 2002, rep. 2003,
p. 887
26
R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 479
27
Rabindra Dhal v. Jairam Sethi, 1982 Cri LJ 2144, 2146 (OriHC); R. V. Kelkar, "Criminal Procedure", rev. Dr.
K. N. ChandrasekharanPillai, 4th ed., 2001, p. 479.
28
1975 Cri LJ 963.
29
Shankar Dattatraya Vaze v. Dattatray Sadashiv Tendulkar,AIR 1929 Bom. 408, 409
jurisdiction had not been fulfilled.” 30 “Another significant feature of Section 300 is re-
penalization for the same crime. The basic rule is that the crimes must be similar, i.e. they
must be identical. As a consequence, not the allegations in the two lawsuits, but the
components of the two offences must be analyzed and compared to see whether their identity
can be established.”31
Sec. 300 forbids trials for the same crimes, not separate offences, that may result from the
same series of actions being performed or omitted. It is clear that the legislature wants to treat
the two sections as separate as it provides that on the same facts, prosecutions could be
brought under two different sections and the punishments given under those sections are also
different. In such a case Sec. 300 cannot apply.
Sub Section 2 of section 300 states,
2. A person who has been acquitted or convicted of an offence may be tried again, with
the consent of the State Government, for any other offence for which a separate
charge may have been brought against him during the previous trial under Sec. 220
(1). When a person has been acquitted or convicted of one crime and a separate
charge for a different crime may have been brought against him in the previous trial
but was not, he should not be subjected to being tried for the other crime as a matter
of course because this could lead to abuse. “To provide a check against such abuse, Sec.
300 (2) makes it obligatory to obtain the consent of the State Government before a new
prosecution is launched against any person for any distinct offence for which a separate
charge might have been made against him at the formal trial under Sec. 220 (1).” 32
Sub – Section 3 states
3. If the consequences had not occurred or were not known to the court to have
happened at the time he was convicted, a person convicted of any offence constituted
by any act causing consequences that, together with such act, constituted a separate
offence from the one for which he was convicted, could be convicted for that last-
mentioned offence later. This section only applies if the defendant has been convicted,
not if the defendant has been acquitted. For example “A is tried for causing grievous
hurt and convicted. The person injured afterwards dies. A may be tried again for
culpable homicide.”33 This provision provides for a retrial of an accused for acts that
were not brought to light in front of a prior conviction court. A conviction does not
30
State v. Birda, (1966) 1 Cr LJ 166, 168; R. V. Kelkar,"Criminal Procedure", rev. Dr. K. N. Chandrasekharan
Pillai, 4th ed. 2001, p. 480
31
State of Bombay v. S. L. Apte, AIR 1961 SC 578.
32
R. V. Kelkar, "Criminal Procedure", rev. Dr. K. N.Chandrasekharan Pillai, 4th ed., 2001, p. 481.
33
Illustration (b) to S. 300 Cr PC
 prevent the accused from being charged again for similar crimes that were not brought
to the attention of the courts. The facts or circumstances must refer to a particular
form of crime for which no conviction may be secured at the first trial. The fresh
evidence must be for a particular form of crime for which the accused may not have
been tried in the previous trial. Fresh evidence or consequences must have happened
after the first trial's conviction or acquittal. “Since a second trial for the crime
constituted by the new evidence would be barred if the new facts or effects were
known to the court at the time of the first trial.”34
4. This sub-section effectively states that if a court is incompetent to prosecute an
accused of an offence that is the product of an offence for which he has already been
convicted or acquitted, the previous acquittal or conviction would not bar the trial for
the consequential offence because the court could not possibly have tried the accused
of that offence.
5. A person who has been discharged under Section 258 can not be tried again for the
same offence unless the court that discharged him or any other court to which the first
mentioned court is subordinate agrees. In a summons case that is not based on a
lawsuit, the court has the authority under Section 258 to suspend the proceedings at
any point without making a judgment. If the stoppage of proceedings is made before the
recording of the evidence of the principal witness, it shall have the effect of discharge of
the accused person. “However, under Section 300 (5), such an accused person cannot be
prosecuted for the same crime again without the permission of the court. This clause is
thought to be useful as a safeguard against the exploitation of the power of new trial in
such cases.”35
6. “The last sub -section in the series of sub - section under Sec. 300 Cr.P.C deals with
Sec. 26 of the General Clauses Act, 1897 and Sec. 188 of the Cr.P.C.”36

34
Ratanlal & Dhirajlal, “The Code of Criminal Procedure”,17th ed., 2004, p. 572-573
35
Ratanlal & Dhirajlal, “The Code of Criminal Procedure”, 17th ed., 2004, p. 573.
36
Ratanlal & Dhirajlal, “The Code of Criminal Procedure”, 16th ed., 2002