2.

Whether trial of Veer by the Court in India, for the same charges that he had already faced in
Dubai, as that would amount to Double Jeopardy?

It is humbly submitted before the court that Veer’s trial before the court of Dubai does not bar
the Indian court to try this matter on the ground of Double Jeopardy. Veer’s trial in India is not
similar to his trial in the Dubai. Also, Veer was not convicted in Dubai he was merely
prosecuted. In addition, Dubai didn’t had competent jurisdiction as per the India laws.

2.1 PROSECTION AND PUNISHMENT DIDN’T COINCIDE

1. It is humbly submitted before the court that Veer’s trial by the Court of India would not
amount to Double Jeopardy. The principle of double jeopardy is enshrined under Article 20
(2) of the Constitution1 which states that “no person shall be prosecuted and punished for
the same offence more than once.” The Supreme Court in the case of General Officer
Commanding, Rashtriya Rifles v. Central Bureau of Investigation and another 2, explained
the term prosecution as "….28 "Prosecution" means a criminal action before a court of law
for the purpose of determining "guilt" or "innocence" of a person charged with a crime.”
2. The provision reads as “….prosecuted and punished….” therefore, to attract Article 20(2)3,
punishment and prosecution should co-exist.4 Veer has been prosecuted before the Dubai
court5and the same is of criminal nature however, he wasn’t punished rather he was
acquitted6. Moreover, mere prosecution without a punishment would not invoke Art. 20(2).
3. Also, the Supreme Court in the case of Kalawati v. State of Himachal Pradesh 7 held that
when there is no punishment for an offence in the earlier prosecution then Article 20(2) will
not get attracted. In this case, the accused committed murder and was acquitted and later he
was again tried and the court didn’t entitle him the protection of double jeopardy.

1
CONSTITUTION OF INDIA, Art. 20. Cl.2.
2
General Officer Commanding, Rashtriya Rifles v. Central Bureau of Investigation and another, (2012) 6 SCC 228.
3
CONSTITUTION OF INDIA, Art. 20. Cl.2.
4
S.A. Venkataraman v. Union of India, AIR 1954 SC 375; D.A. Kelshikar v. State of Bombay, AIR 1960 Bom 225.
5
Moot prop, para 8.
6
Moot prop, para 10.
7
Kalawati v. State of Himachal Pradesh, AIR 1953 SC 131.
4. It is also to be noted that Article 20(2) only incorporates autrefois convict and not autrfois
acquit. The accused in the present case has been acquitted. 8 Thus, it is prima facie clear that
this provision should not be looked upon as a defence.

2.2 OFFENCE NOT SIMILAR TO THE PREVIOUS OFFENCE

5. It is humbly submitted before the court that the offence for which Veer is being tried under
the Indian court is not similar to the offences for which he was tried under the court of Dubai.
Veer has been prosecuted under Article 344 of the Dubai Penal Code and Article 2 of the
Federal Law of Combating Trafficking.9 The said provisions are not equivalent to the
provision of IPC and the Immoral Traffic (Prevention) Act, 1956 (ITP Act). It is to be noted
that Article 20(2) can only operate when the offence is similar or else the accused cannot
claim defence with regard to this provision.10
6. Moreover, the Supreme Court in the case of State of Bihar v. Murad Ali Khan 11 held that a
double punishment is not barred if there are different offences with different ingredients
under two different enactments. In the present case, Veer has previously been tried under the
different enactment which has different ingredients. However, with regards to the offence, he
has been tried in addition to the offences which the Dubai court had tried.
7. Veer has been tried under S. 366 of the IPC for kidnapping, abduction or inducing a women
to compel her marriage, etc., S. 371 of IPC which for habitual dealing in slaves, S. 5 of the
ITP for procuring, inducing or taking person for the sake of prostitution and S. 7 of the ITP
for prostitution in or in the vicinity of a public place. The above mentioned provisions are
altogether different than the provisions for which he was tried in Dubai. Art. 2 of the
Federal Law of Combating Trafficking merely deals with the trafficking of human beings
and not with prostitution. However, in India he has been accused of prostitution as well.
8. Veer has been tried for prostitution and slavery which is completely different from
kidnapping and human trafficking. A fine distinction has been drawn between the trafficking
and slavery. The former pertains to a movement from one place to another while the latter
8
MP Jain, Pg. 1215
9
Moot prop, para 8.
10
Bhagwan Swarup v. State of Maharashtra, AIR 1965 SC 682; Harjinder Singh v. State of Punjab, AIR 1985 SC
404.
11
AIR 1989 SC 1
 means exploitation that happens after such movement thus, not only the provisions but also
the ingredients altogether differs. Similarly, in the case Mohinder Singh v. State of
Punjab12, the accused was tried under S.3 of TADA for possessing a firearm and later, he
was tried under S.5 of TADA for possessing a stengun. The court held that the accused was
not being tried for the same offence as the ingredients differed.
9. As regards to the IPC, it totally differs from Article 344 of the Dubai Penal Code in terms of
ingredients and in terms of legislative’s intent. Furthermore, in S.L. Bombay v. S.L. Apte13
the Supreme Court maintained that a pre-requisite to attract Article 20(2) is that the offences
are of same meaning, it should be identical. The court further laid that "It is therefore
necessary to analyse and compare not the allegations in the two complaints but the
ingredients of the two offences and see whether their identity is made out..."14
10. The same was the contention of the Supreme Court in the case of Leo Roy Frey v. Stupd.
District Jail15. The court distinguished the crime and the offence to commit the crime so as to
exclude double jeopardy and try the accused. Similarly, Veer has been tried under the
different provisions which have been ascertained above.
11. Further, in the present case he is being prosecuted for the additional alleged crime, i.e. not
only for kidnapping Rohini but also for above mentioned offences under IPC. The court in
the case of V.K. Agarwal v. Vasantraj16 noted that a bar to 20(2) does not apply when the
person is being prosecuted for two distinct offence and ingredients. Similarly, in Radeep
Kumar v. State of Odisha and Ors. 17, the High Court held that “…In case distinct offences
are being committed there has to be independent trial for each of such offence”18
12. Also, it would be a vague argument from the defence that the facts were similar in the
previous trial and thus exemption should be availed. However, in Monica Bedi v. State of
A.P.19 the court explicitly held that the protection under Article 20(2) of the Constitution will
not be availed if same facts may give rise to different prosecutions and punishments. In State

12
Mohinder Singh v. State of Punjab, (1998) 7 SCC 390; State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC
600.
13
S.L. Bombay v. S.L. Apte AIR 1961 SC 578.
14
S.L. Bombay v. S.L. Apte, AIR 1961 SC 578, at Para 16.
15
Leo Roy Frey v. Stupd. District Jail, AIR 958 SC 119.
16
V.K. Agarwal v. Vasantraj, AIR 1988 SC 1106.
17
Radeep Kumar v. State of Odisha and Ors, 2004 CriLJ 3655.
18
Radeep Kumar v. State of Odisha and Ors, 2004 CriLJ 3655, at Para 34.
19
Monica Bedi v. State of A.P., (2011) 1 SCC 284.
 of M.P v. Bireshwar Rao,20 the accused was first tried under S.52 of the Prevention of
Corruption Act, 1947 where he was acquitted of the offence. Later, he again tried under
S.409 of the IPC on the identical facts. The court held that such trial is not prohibited.
13. Furthermore, in Sangeetaben Mahendrabhai Patel v. State of Gujarat and Anr 21, the court
held that in order to attract Art. 20(2) of the Constitution, S. 26 of the General Clauses Act,
or S. 300 of the Crpc, the ingredients should be same as that of the previous case and should
not be different. Hence, he is liable to be tried before the Hon’ble court of law on the grounds
of different provision and its different ingredients.

2.3 FOREIGN TRIAL IS NO BAR TO INDIAN TRIAL

14. It is further submitted that foreign trial is no bar to the Indian trial. A convict can be tried on
the same facts which the foreign court tried the accused with. Moreover, it is prima facie
clear that he is being tried under the Indian law and previously he had been tried under the
laws of Dubai. Therefore, no point of same ingredient arises. In Jitendra Panchal v.
Narcotics Control Bureau22 the accused was tried under the drug laws of USA and on the
same facts he was again tried in India under the Narcotic Drugs and Psycotrophic Substance
Act, 1985. The court held that Article 20(2) would not get attract as the laws were distinct
and separate. Similarly, Veer has been tried under Dubai Penal Code and is being tried under
the IPC. The same will not entitle the accused with the defence of Double Jeopardy.
15. It is submitted that Article 20 of the Constitution contemplates any offence committed under
the municipal laws and not under any foreign law. The Bombay High Court in the case of
Rambharti Hirabarthi23 concluded that any offence committed by the accused in foreign
country could not entitle the Indian courts to take cognizance of the offence thus committed.

2.4 VEER WAS NOT TRIED BY A COURT OF COMPETENT JURISDICTION

20
State of M.P v. Bireshwar Rao, [1957] INSC 30.
21
Sangeetaben Mahendrabhai Patel v. State of Gujarat and Anr, (2012) 7 SCC 621.
22
Jitendra Panchal v. Narcotics Control Bureau, (2009) 3 SCC 57.
23
Rambharti Hirabarthi, AIR 1924 Bombay 51.
16. It is submitted before the court that the court of Dubai has no competent jurisdiction to try
this matter in regards to S. 300(1) of the Crpc. It is submit before the court that S.300 (1) of
the Criminal Procedure Code (Crpc) which is the being considered at par with Article 20(2)
of the Constitution entertains the second proceeding before the court of law if the previous
court is not of competent jurisdiction. In State v. Birda24 it was opined that under S.300 (1) of
the Crpc, the term ‘court of competent jurisdiction’ the court must be qualified to try a case
ordinarily. And the court of Dubai tried Veer under special circumstance i.e. under their
country’s laws. The same court cannot try Veer with the Indian provision namely IPC, Crpc,
and the forth ones.
17. Thus, the term competent court here indicates a court of India which can try a matter with
respect to the Indian laws, and the court of Dubai would not be competent in any
circumstances. Thus, the court having no jurisdiction would be void ab initio. Therefore, by
nulling the previous trial, Veer can further be prosecuted before the court of India with
respect to this provision as well. In addition to the above, S. 300(6) of the Crpc explicitly
enshrines that “nothing in section 300 shall affect the provisions of section 26 of the General
Clauses Act, 1897 or of section 188 of this code.”
18. Section 26 of the General Clauses Act, 1897 reads as “Where an act or omission constitutes
an offence under two or more enactments, then the offender shall be liable to be prosecuted
and punished under either or any of those enactments, but shall not be liable to be punished
twice for the same offence.” The enactments being different in India and Dubai thus he can
be punished for the offence for which he has been tried before the court of Dubai. Moreover,
this provision only deals with the Indian enactments.

(Bhai ye 2.4 wala issue 1st issue pe hi bnega isme mereko bhi confusion hai kyuki iski book mil
nhi rhi hai cprc ki)

Aur general clauses act or crpc….. Article 20(2) ko wide krta hai isliye isk daalna zaruri hai isko
nikal to nhi skta thik vaise hi 2.4 ko change kr skta hu 1 st issue ke basis pe lekin change nhi hta
nhi skta……kaam ka hai

24
State v. Birda, (1966) 1 Cr LJ 166, 168.