DOUBLE JEOPARDY: CONCEPT AND ANALYSIS

The doctrine of Double Jeopardy is one of the most debated concepts

in India. The concept of Double Jeopardy in defined in Indian
Constitution under Part III, Article 20(2) of the constitution. Section 300
of CrPC, 1973 also defines on the concept of Double Jeopardy. In its
general sense, Double Jeopardy is defined as that no person shall be
convicted for one offence more than once. Any person who has been
acquitted or convicted of any offence once shall not be convicted again
for the same offence for which he/she is already acquitted or convicted.
The present work therefore aims to detail on the doctrine of Double
Jeopardy, its nature and meaning. A brief historical evolution of the
concept along with the current position of laws in India. The paper also
focuses on some landmark judgments which simplifies and clarifies the
concept of double jeopardy under constitutional and criminal law. The
paper therefore throws a light on basic concept of the Double Jeopardy
laws in India.

Introduction
In every criminal justice system, the aim of the justice system is to
punish the convicts of the crime for their wrongful act and rehabilitate
with the purpose of their recovery. The system does not intent to harm
the convicts by unnecessarily punishing them and making their living
difficult. But there are some instances where the convicts of the crimes
maybe repeat offenders are convicted for their acts multiple times even
for the same offence.
This act of granting multiple punishments for same offences violates
offenders one of the Fundamental rights granted under constitution of
India. Part III of the Indian Constitution provides certain fundamental
rights available to citizens of India. Under these fundamental rights,
article 20(2) of the Indian Constitution provides that No person Shall be
prosecuted and punished for the same offence more than once.
This article of the constitution provides for the basis of double jeopardy
laws in India. The principle of autrefois convict or double jeopardy
means that no person can be punished twice for the same offence.
‘Double Jeopardy’ is the act of putting a person on second trial for an
offence of which he or she was already been tried and prosecuted or
convicted. The doctrine lays that if a person is charged for an offence
and tried in the court of law of which he has been declared innocent or
guilty cannot be tried again for the similar offence.

History
The concept of double jeopardy marks its existence from the Latin
maxim Nemo Debet bis Vexari. This doctrine states that a man should
not be present in court of law twice for the same offence. This maxim
however also exist in S. 26 of the General Clause Act and S. 403(1) of
CrPC 1898. S. 26 states that where an 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 twice for the same offence.
The doctrine of double jeopardy is now defined under S 300 of CrPC
which will be discussed in detail later in the paper. The concept
however evolved more and took various changes in its form and
definition leading to the current position under Indian laws on criminal
procedure code and the Constitution of India.

Double Jeopardy laws in India

  Double Jeopardy: Constitution of India
Part III of Indian Constitution defines on fundamental rights available to
people within the territory of India. Under these fundamental rights,
one of the right which is defined in Art 20(2) states that:
No person shall be prosecuted and punished for the same offence more
than once.
The clause (2) of Art 20 provides that a person cannot be prosecuted
and punished more than once for the same offence. The word
‘Prosecution’ under this article consist of three essential components to
categorize the concept under this article.

Three essential components of prosecution are:

1. The first requirement is that a person must be an accused of any
offence. The word is defined as act or omission which is
punishable by law, also defined under General clause Act.
2. The next essential is that there should be a proceeding or
prosecution of the case before a competent court or a judicial
tribunal. These judicial tribunal does not include departmental
and administrative authorities. The defense of double jeopardy
for second prosecution only exists against the cases which are
tried at judicial courts or tribunals.
3. The third essential Is that when a tribunal accepts the
administrative and departmental enquires, these enquires are not
considered as proceedings and therefore cannot be the part of
proceedings with respect to prosecution and punishment.
These three essentials under the prosecution makes it clear that the
concept of double jeopardy under constitution of India only satisfy the
maxim of autrefois convict and not the maxim of autrefois acquit. This
means that the concept can be invoked only for the cases under which
the person is prosecuted and punished in their first proceeding.
The constitutional provision of double jeopardy is only applicable for
the cases which are tried under judicial courts and tribunals. These
does not include enquiry or even punishments given by statutory
bodies like departmental or administrative bodies.
The doctrine of double jeopardy is therefore a narrow concept as
compared to English law. The broad spectrum of the concept is
however mentioned in S. 300 of CrPC which widens the ambit of the
provision in India.

Double Jeopardy: Criminal Procedure Code

The position of double Jeopardy laws under Criminal procedure code is
much wider than what is given in constitution. The concept is defined
under S. 300 of CrPC and give a detail analysis by giving provisions on
what will form a part of double jeopardy and what all are the
exceptions made under it. One of the major point of emphasis is under
CrPC, double jeopardy laws deal with both the issues of autrefois
convict and autrefois acquit. Therefore double jeopardy is applicable to
all those who can are either acquit or convict of the offence.
The doctrine of double jeopardy is found under S. 300 of CrPC. There
are six sub clause under this section which aims to provide an
exhaustive view on the concept. All the sub clause will be explained in
this part of the paper.
Clause (1)
S 300(1) of CrPC provides that if any person is tried under the court of
competent jurisdiction and found acquitted of convicted for an offense
committed, and when such acquittal or conviction remains in force
cannot be tried again for the same offence twice. Second trial cannot
be made on that person for the same set of facts and same offence and
nor he\she shall be tried again for the same set of facts for different
charges made against him under sub section (1) of 221or for sub
section (2) of 221. This means that if a person is convicted of an offence
under sub section (1) of 221 then he cannot be convicted under sub
section (2) of 221 in the second trial for the same set of facts.
Some other essentials to this section includes that ‘acquittal’ for the
purpose of this section does not include dismissal of a complaint nor
does it include discharge of accused. The case in its first trial should be
tried under the court of competent jurisdiction. The section also
requires that fall under this concept, the facts of the case should be
identical. This means a person will one be barred under this section
from second trial if the facts of the case under second trial is identical
to the facts of first trial.

Clause (2)
Clause (2) of this section provides that if a person has committed
several offences but he was not tried for all such offences in the first
trial then he cannot be prosecuted for other charges in the second trial.
This means that when a person is acquitted or convicted for any offence
and then he is charged with another offence separately then he cannot
be charged for another offence under second trial as it is an abuse in
itself. A person cannot be always made under prosecution for different
charges separately. So to provide a check against this abuse, section
300(2) make it obligatory to obtain consent of 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 the
person at the former trial.
The clause therefore provides that this section does not bar the
prosecution under second trial for distinct offence but it should be
initiated only after the consent of state government.

Clause (3)
Clause (3) of the section permits for the second trial of the convict only
in the cases where some new facts came into existence as a
consequence of already existing offence. Firstly, this section is only
applicable to the convicts of the offence and not to the acquits of the
offence. The second element of this clause is that a person can only be
re-tried in the cases where some facts relating to the offence were not
came into the notice of the courts.
This means that a convict can be taken for re-trial if some new facts
were noticed in the case and these new facts were not known to the
courts in the first trial. It mandates that the new facts or consequences
must have occurred since the conviction or acquittal of first trail was
going and these were not brought in the notice of the court. It
therefore says that if some new offence took place in the course of first
trial, as a result of already known offence, but not known to the courts
in the first trial, then the convict can be re-tried in the second trial only
for the newly observed offence which was not known in the first trial.
Second trial would be barred if the consequences and offences of the
second trial were already known to the courts in the first trial.

Clause (4)
Clause (4) of this section is in continuance with clause (3) and act as an
exception to the rule of double jeopardy. This clauses states that if any
court is incompetent to try the accused of any offence which is actually
the consequence of the offence which the court is taking trial, the first
acquittal or conviction will not bar the competent court to take
cognizance of consequential offence. This basically means that if the
court under which first trial was made was not competent enough to
try the second offence which was the consequence of the first offence
can be tried in other competent court and the first trial will not act as a
bar on second trial.

Clause (5)
Clause (5) of the section says that if a person is discharged under S. 258
of CrPC which talks about the courts power to stop the proceedings of
the case at any stage without pronouncing the judgment. The stoppage
can however be made after recording the evidence of principle witness,
pronouncement of acquittal or release of the accused have the effect of
discharge. This clause (5) therefore states that no such accused person
under S 258 shall be tried again for the same offense unless the consent
of the court from which such discharge was made is obtained. This
provision is made to protect the person against the abuse of power of
fresh prosecution in such cases.

Clause (6)
This is the last clause of S. 300 which provides that nothing in this S 300
of CrPC shall affect the provisions of S 26 of General Clause ACT, 1897.
S.26 provides for an acts or omission constituting an offence under two
or more enactments. This means that if the offence which is committed
by the accused falls under two or more enactments then that accused
shall be charged with either of the two enactments. The emphasis is
made on the ingredients of the two offences with which the accused is
charged. It is also provided that the accused shall not be made liable
and punished for the same offence twice, but if there exist two distinct
offence that the ban imposed by S.26 cannot be imposed.

Landmark Judgment
MAQBOOL HUSSAIN V. STATE OF BOMBAY
In this case, the appellant Maqbool Hussain, a citizen of India arrived at
an airport of Santa Cruz from a place from abroad. Upon his landing, he
did not declare that he has brought gold from abroad. However on
search it was discovered that he brought 107.2 tolas of gold which was
in contravention to government notification dates August 25, 1948.
Action was taken against the appellant by the custom authorities and
the gold was thereafter confiscated. Later the appellant was prosecuted
by the criminal court under the Foreign exchange Regulation Act. The
question was whether the plea of autrefois acquit be raised under Art
20(2) of the Indian Constitution or not.
The Supreme Court in this case concluded that the proceedings made
before any custom authorities does not constitute ‘prosecution’ of
appellant and the penalty imposed by such authorities does fall within
the category of ‘punishment’ as under Art 20(2) of Constitution of India.
It was therefore said that in this case where the case was first
presented under custom authorities and then before the criminal court
does not constitute as second trial and Art 20(2) does not act as a bar
on second trial.
The Supreme Court therefore pronounced that 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. 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.
The court therefore excludes departmental and administrative
authorities from this provision of double jeopardy and only considers
proceedings which are made before judicial courts and judicial
tribunals.

ROSHAN LAL & ORS V. STATE OF PUNJAB

In this case there were three appellants who were charged under S 409,
IPC and S 5 of Prevention of corruption Act, 1947 for making false
panchnama in which they have shown the recovery of 90 gold biscuits
while as per the prosecution case 99 gold biscuits were recovered. The
appellants are therefore tried for the same and acquitted thereafter.
However, the appellants were again tried under S 120-B, IPC and S 135
& 136 of Custom act, Section 85 of Gold(control) Act and some other
offences. The validity of this second trial was challenged by the
appellants on the ground that it is in contravention of their
constitutional right guaranteed under Art 20(2) of the Constitution of
India.
The court In this case observed the facts and held that:
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.
From the judgment of this case it can be said that courts clear on the
views that a person can be prosecuted again if the offences and facts of
the second trial are different from the first trail. In this case it was
found that both the facts and offences charged in second trial are
different from first trial and therefore there cannot be any bar for the
prosecution of the case in second trial.

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
From the above findings and analysis made in the paper it can be
observed that the concept and doctrine of double jeopardy lays that a
person shall not be prosecuted twice for same offence. The concept is
defined in the constitution of India under Art 20(2) and in Criminal
Procedure Code under S 300. The concept defined under constitution is
narrower than what is laid in criminal procedure code.
It however requires certain essentials conditions to take the defense of
double jeopardy under the said law. On subsequent fulfillment of such
requirements a person shall be barred from second prosecution and no
other criminal proceedings can be made against him for that offence.
The Intention of defining the concept so exhaustively under both the
laws is to protect individuals from multiple punishments for same
offence. The concept is necessary to protect individuals from
emotional, social, and financial losses which a person might incur
during such multiple prosecutions. The intention is to preserve the
finality and integrity of the criminal justice system and to safeguard and
govern the abuse of powers granted to criminal administration.
So to safeguard the interest of all those who are once acquitted or
convicted from multiple prosecution and to create a check on the
criminal administrative system, the doctrine of double jeopardy is made
necessary and therefore defined exhaustively under Indian Laws.