Law of Crimes II- CrPC

B.B.A-L.L.B. (HONS.) / SEMESTER-IV ICA

PROJECT

Subject: Law of Crimes II- CrPC

Topic: A discussion on law of double jeopardy in India

Submitted To: Prof. Tanmay Tripathi

Submitted by:

Vedant

Vengsarkar

Sap ID: 81022019178

Roll No: D069

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Table of Contents

S.No Particulars Pg. No

1. Abstract 3
2. Research Objectives 3
3. Research Hypothesis 3
4. Research Methodology 3
5. Literature Review 4
6. Introduction 5
7. History and origin of the 6-7
principle
8. Provisions relating to 7-8
Double Jeopardy

9. Double Jeopardy and Res 8

judicata - Difference

10. Case Laws 8-10

11. Double Jeopardy and its 10-11
International Perspective

12. Conclusion 11
13. References 12

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Abstract

The prohibition against double jeopardy is a centuries-old common law principle that prohibits a person from
being prosecuted for the same crime twice. The rule is critical for the safeguarding of the criminal justice system's
integrity, as well as the accused's valuable human rights. Regardless of the form of the system, the existence of
the rule is very important in criminal justice administration. The study attempts to investigate how the notion of
double jeopardy is applied in Indian law, with a focus on the Indian Constitution, and how it preserves the
fundamental rights of those accused of crimes. It also examines court decisions on the scope and limitations of
the theory of double jeopardy. This paper will also analyze the jeopardy laws in India with those of the English
ones and will further support this with relevant cases. After this is done the difference between double jeopardy
and Res Judicata will be further analysed.

Keywords: prohibition, double jeopardy, accused, Res Judicata, human rights

Research Objectives

• To analyze the jeopardy laws in India and to compare them with the English ones.
• To study the relevant case laws related to double jeopardy in India
• To examine the scope and limitations of jeopardy laws in India
• To discuss the difference between Double jeopardy and Res judicata

Research Hypothesis

H0- Double jeopardy is not an important safeguard for the criminal justice system.

H1-Double jeopardy is an important safeguard for the criminal justice system.

Research Methodology

The researcher has used secondary sources of data for this paper which include books, journals, articles,
newspaper reports and websites etc. After thorough analysis and interpretation is done, a conclusion shall be
given wherein the researcher will give his opinions with certain suggestion/recommendations as to how the
double jeopardy laws in India are useful as well as the English ones.

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Literature Review

• Michael John Garcia (2010)1, Double jeopardy, also known as non bis in idem, is a rule that bans a
person from being prosecuted a second time. The rule states that fugitives who have been acquitted or
convicted for the identical offences should not be prosecuted again.
• Chandrasekharan Pillai (1998)2, In the Jamaican constitution it prohibits the double jeopardy rule which
is the prosecution of a person on an offense more than once after a conviction or an acquittal. Similarly,
this rule applies in the United States under the 5th Amendment of the U.S. constitution. In United States
double jeopardy indicates that a person cannot be reconvicted for the same offense based on the same act
that they were once convicted of.
• Robotham, Don (2009), It is evident that time and time again many cases are thrown out of court due to
the amendments made in the constitutions of Jamaica and that of United States regarding the double
jeopardy rule. In Jamaica it is shown through varies news sources that provisions on double jeopardy are
being widely practiced across Jamaica. For example, a group of students who were once suspended from
school on one offense were saved from expulsion because of the suspension. It was the law of the school
that no student can be punished twice for one offense. The policy which has been adopted by many schools
in Jamaica is a clear indication of how the country and its citizens view the double jeopardy rule.
• Robotham, Don (2011), In Jamaica it is shown through varies news sources that provisions on double
jeopardy are being widely practiced across Jamaica. For example, a group of students who were once
suspended from school on one offense were saved from expulsion because of the suspension. It was the
law of the school that no student can be punished twice for one offense. The policy which has been adopted
by many schools in Jamaica is a clear indication of how the country and its citizens view the double
jeopardy rule.
• David Evans (2005), It is evident through their legal systems that both countries though founded on
different standards agree that a prosecutor should not be allowed to make more than one attempt to convict
an individual for an alleged offense. This is because double jeopardy subjects’ individuals to
embarrassment, financial problems, or even convicting an innocent person after two separate trials on the
same claims. If for instance, a prosecutor reties a case whereby the defendant was found innocent and the

1
Michael John Garcia. Extradition to and from United States: Overview of the Law and Recent
Treaties. New York: DIANE Publishing, (2010)

2
Chandrasekharan Pillai. Double Jeopardy Protection: A Comparative Overview. Texas: Mittal
Publications, (1988)

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second trial finds the same person guilty, such a procedure can cause that individual to be financially
unstable because of lawyer’s fees, courts fees etc.

Introduction

Every civilized society maintains a criminal justice system in order to control crime and impose penalties on
those who violate laws. Criminal justice is the system of practices and institutions of governments directed at
upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal
penalties and rehabilitation efforts. But any criminal justice system to be valid must be in conformity with the
constitutional requirements. The criminal justice system operates on the basis of certain values within which it
admits no compromise. The double jeopardy principle is one such value protected by the system. It is a procedural
safeguard, which bars a second trial then an accused person is either convicted or acquitted after a full-fledged
trial by a court of competent jurisdiction.

A defendant may plead autrefois acquit and autrefois convict (peremptory plea) under Common Law, indicating
that he or she has previously been acquitted or convicted of the same offence. If this objection is raised, evidence
will be presented to the court, which will generally rule on whether the plea is maintained as a preliminary matter,
and if it is, the planned trial will be postponed. Section 26 of the General Clause Act 1897 states: Where an act
or omission creates an offence under two or more enactments, the offender shall be entitled to be tried and
punished under any or any of those enactments, but shall not be liable to be punished twice for the same offence.

In India, Article 20 of the Constitution protects against double jeopardy. It was incorporated in the Constitution
by the founding fathers as a Fundamental Right. The Indian Constitution, which is written in a lovely poetry-in-
prose style, gives citizens some essential human rights and liberties, including freedom from double jeopardy. As
a result, no one can be prosecuted and punished more than once for the same offence. The clause upholds the idea
that a person cannot be tried again by an equally competent court for the same offence. When a person is convicted
of a crime by a competent court, the conviction prevents him from being prosecuted for the same crime in the
future. The concept is that no one should be punished twice for the same crime.

Partially protecting against double jeopardy (Autrefois prisoner) is a Fundamental Right granted in India by
Article 20 (3) of the Indian Constitution. "No person shall be prosecuted and punished more than once for the
same offence," it says. It does not, however, apply to autrefois acquit, which means that a person who has been
'acquitted' of a crime can be retried. In our country, protection against autrefois acquit is a statutory right, not a
basic one.

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History and origin of this Principle

Judicial 3and academic pronouncements on the principle of double jeopardy protection tend to presume or imply
unquestioningly that the rule has a long history and good doctrinal grounds. Although the legal context was much
different, the notion of double jeopardy was not wholly unknown to the Greeks and Romans. This notion was
codified in Justinian's Digest4, which stated that "the governor should not permit the same individual to be charged
of a crime for which he had been acquitted twice." The double jeopardy clause is not explicitly stated in Magna
Charta, nor can it be inferred.

The extreme method was commonly used in the eighteenth century. It's worth noting that in the eighteenth
century, Blackstone stated: "First, the plea of autrefois acquit, or a former acquittal, is based on the universal
maxim of English common law that no man should be put in jeopardy of his life more than once for the same
offence, and thus it is allowed as a result that when a man is once fairly found not guilty upon any indictment or
other prosecution, before any court having competent jurisdiction of the offence, he may plead such acquittal in
bar.

The concept of double jeopardy was prevalent in the Roman law in the Justinian Code. The court's observation
in Green v. United States5 reflects the classic argument for the rule's necessity to be maintained. The Court made
the following observation: "The underlying idea... is that the State, with all of its resources and power, should not
be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to
embarrassment, expense, and ordeal and forcing him to live in a constant state of anxiety and insecurity, as well
as increasing the risk that he may be found guilty even if he is innocent." "

The plea of autrefois acquittal, or a formal acquittal," Blackstone said, "is predicated on the universal maxim...that
no man is to be brought into risk of his life more than once for the same offence." The former exclusively applies
to capital offences, which is a key distinction between historical doctrine and present double jeopardy legislation.
Double jeopardy does not apply solely to acts involving "life or limb" in modern times; it also applies to any
criminal proceedings and punishments in which a person's liberty is threatened several times. Many countries,
including Australia, Canada, the United Kingdom, portions of Asia, and the United States, nevertheless have
relics of double jeopardy in modern times. Many countries, including the United States, Canada, Mexico, and
India, recognise it as a constitutional right.

This rule's protection has also gained international recognition through various international documents, such as
Article 14(7) of the International Covenant on Civil and Political Rights, Article 4(1) of Protocol 7 to the

3
Jill Hunter, The Development of Rule Against Double Jeopardy.
4
Digest of Justinian, Book 48, Title XVII, as translated in Scott, The Civil Law,(1932)
5
(1957), 355 US 185
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European Convention on Human Rights, and Article 50 of the European Union's Charter of Fundamental Rights.
States must comply with the applicable requirements of the conventions to which they have agreed.

Provisions Relating to Double Jeopardy

ARTICLE 20(2) OF THE CONSTITUTION

Article 20(2) provides that “No person shall be prosecuted and fined for constant offence over once.”The
elementary conditions for the relevance of Article 20(2) square measure that:

• There should are a previous prosecution,

• The suspect should be fined at such prosecution,

• The subsequent proceeding should even be one for the prosecution and penalization of the suspect, and

• Proceedings on each the occasions should in reference to constant offence.

SECTION 300 CODE OF CRIMINAL PROCEDURE, 1973

On constant lines Section 300 of Code of Criminal Procedure, 1973 give protection against double jeopardy. It
says, person once guilty or innocent to not be tried for same offence. One United Nations agency has once been
tried by a Court of competent jurisdiction for associate degree offence and guilty or innocent of such offence
shall, whereas such conviction or final decision remains good, not be susceptible to be tried once more for
constant offence, nor on constant facts for the other offence that a special charge from the one created against
him might need been created.

In Kolla Veera Raghav Rao vs Gorantla Venkateswara Rao and Ors (2011) 2 SCC 703, has addressed the
idea of 'Double Jeopardy'. The Supreme Court has control that the provisions of S. 300(1) of the Code of Criminal
Procedure, 1973 is way wider than the provisions of Article 20(2) of the Constitution of Republic of India.

SECTION 71 OF INDIAN PENAL CODE

Limit of punishment of offence created of many offences: The section says that wherever associate degree
offence is formed of elements, associate degree of that element is an offence, the penalization which may be
awarded to the wrongdoer shall be for one offence and less, unless expressly provided. wherever something is
associate degree offence below over one separate definitions of law good at the time, or wherever over one act,
of that one or additional represent associate degree offence, once combined represent a special offence, the Court
is authorized to award solely such penalization because it might award for anybody of such offences, and therefore
the wrongdoer shall not be fined with an additional severe punishment. The Supreme Court within the case of
Sangeetaben Mahendrabhai Patel Vs. State of Gujarat (2012) 7 SCC 621 has held that the only issue raised
during this charm is concerning the scope and application of school of thought of prosecution. The rule against

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prosecution provides foundation for the pleas of autrefois acquit and autrefois convict. The manifestation of this
rule is to be found contained in Section 300 of IPC; Section 26 of the General Clauses Act; and Section 71 I.P.C.

Double Jeopardy and Res Judicata/Issue Estoppel – Difference

Because the scope of the two principles is not identical, our Supreme Court has held that the application of the
above rule of res judicata in India is not precluded by the fact that the rule against double jeopardy is codified in
s. 300 of the Cr. P.C. and also guaranteed by Article 20(2) of the Constitution. Because the rule of res judicata is
based on the principle that if a competent court has previously tried an issue of fact and found in favour of the
accused, that finding will serve as an estoppel against the prosecution—not as a bar to the trial, but as a bar to the
reception of evidence to overturn the fact finding when the accused is tried again, even for a different offence.
The idea of res judicata is sometimes known as the doctrine of 'issue estoppel,' because it is based on the identity
of the issues in the two trials.

The basic difference between the principles of double jeopardy and res judicata is that, while the rule of double
jeopardy does not apply unless the offence involved in the subsequent proceeding is not the same as in the
previous proceeding, the rule of res judicata does apply even if the subsequent proceeding is for a different
offence.

In essence, the doctrine of protection against double jeopardy states that once a case is closed, it cannot be
reopened or contested again. The Roman-law theory of res judicata embodied the finality principle. The doctrine's
primary concept is that an issue or question brought by one's opponent that has previously been adjudicated in
previous legal processes cannot be raised again. Roman literature on the notion of res judicata reflect a concern
that a community should be protected from what may be construed as oppressive suit multiplicity.\

Case Laws

In Venkataraman v Union of India, the Supreme Court held that Art.20(3) refers to judicial punishment and
protects a person from being prosecuted and punished for the same offence many times. In other words, if a
person has been prosecuted and sentenced for an offence in a previous proceeding, he cannot be prosecuted and
sentenced for the same offence in a subsequent hearing. Any law that provides for such double punishment is
null and void. However, the Article does not grant immunity from any procedures other than those before a court
of law or a judicial panel. As a result, a government employee who has been convicted of an offence in a court
of law may face departmental proceedings for the same offence, or vice versa.

The court stated in Leo Roy V. Superintendent District Jail, that even if the offender had been convicted under
the Ocean Customs Act, they might be charged under the IPC again because there were two separate charges and
offences.

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V. L.R Malwani, Assistant Collector of Customs, where the accused was charged with smuggling of foreign
products and fined by the customs authority. After being found guilty by the magistrate and receiving no respite
from the Supreme Court, the accused filed a petition and pleaded prosecution before the Supreme Court. The
court decided that in order for prosecution to be effective, the accused must be prosecuted by a court with
competent jurisdiction, and the conviction or acquittal must be effective. In this case, the court found that the
penalty imposed by the customs authority was not equivalent to prosecution, and so the accused could be
prosecuted in court, and thus his plea of prosecution was refused.

We can't use the theory in a case where an acquittal has been overturned on appeal. This was declared in the case
Kalwati V. State of Himachal Pradesh in which the accused was found not guilty of murder. The state challenged
the court's judgement; therefore, the accused entered a plea of guilty. It was decided that because the accused had
not been penalised at the time of the trial, prosecution could not be employed, and so the appeal was granted.

In the case of Institute of Chartered Accountants of India v. Vimal Kumar Surana, the court recently ruled that
a person's conviction under a different statute does not constitute double jeopardy. The Chartered Accountant Act
of 1949 was used to charge the defendant. The court found that simply because he is charged under the provisions
of such legislation does not grant him immunity from prosecution because the elements of the crime varied and
he might be punished under a variety of laws, including the Indian Penal Code.

The Supreme Court concluded in Rao Shiv Bahadur Singh v. State of V.P. that what is prohibited under article
20 is simply conviction or punishment under an ex post facto statute, not its trial. It is not reasonable to argue that
the restriction against double jeopardy only applies when both instances [two different things for which the
accused was charged] occur after the Constitution. Article 20 does not have retroactive effects, but laws that do
should be limited to article 20. The constitutional sovereignty is not rendered useless by laws passed before the
constitution was enacted.

Landmark Judgements

Maqbool Hussain v. State of Bombay

In this case, the appellant, Maqbool Hussain, an Indian citizen, came at a Santa Cruz airport from a foreign
location. He did not report that he had brought gold from another country when he arrived. However, upon further
investigation, it was determined that he had transported 107.2 tolas of gold, in violation of government
notification dates of August 25, 1948. Customs authorities took action against the appellant, and the gold was
seized as a result. The appellant was later charged with violating the Foreign Exchange Regulation Act by a
criminal court. The question was whether Art 20(2) of the Indian Constitution allowed the defence of autrefois
acquit.

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In this case, the Supreme Court held that the procedures before any custom authority do not constitute
"prosecution" of the appellant, but that the penalty imposed by such authorities does fall under the category of
"punishment" as defined by Art 20(2) of the Indian Constitution. As a result, it was decided that in this case,
where the case was first brought before customs authorities and later before a criminal court, there was no need
for a second trial and therefore Art 20 did not apply. As a result, the court excludes departmental and
administrative agencies from this rule of double jeopardy, allowing only judicial courts and judicial tribunals to
hear cases.

Roshan Lal & ors v. State of Punjab

In this case, three appellants were accused with producing a fake panchnama in which they claimed to have
collected 90 gold biscuits when the prosecution claimed they had recovered 99 gold biscuits. As a result, the
appellants are tried and found not guilty. The appellants, on the other hand, were tried anew under Section 120-
B of the Indian Penal Code, Sections 135 and 136 of the Customs Act, Section 85 of the Gold (Control) Act, and
additional charges. The appellants challenged the legitimacy of the second trial, claiming that it violated their
constitutional right to a fair trial as granted by Article 20(2) of the Indian Constitution. The decision in this case
shows that courts are united in their belief that a person can be tried twice if the offences and facts of the second
trial differ from those of the first trial. In this instance, it was determined that the facts and charges in the second
trial are distinct from those in the first trial, and so there is no obstacle to the prosecution of the case in the second
trial.

Double Jeopardy and it’s International Perspective

The law of double jeopardy is different in different countries. The law of double jeopardy for some countries is
as follows:

England

Following the assassination of Stephen Lawrence, the Macpherson Report suggested that the double jeopardy
rule be abolished in murder cases, and that an acquitted murder suspect be given a second chance if "fresh and
viable" new evidence became available later. In its study "Double Jeopardy and Prosecution Appeals," the Law
Commission later backed this up (2001). These proposals were incorporated into the Criminal Justice Act of
2003, which was contentious at the time and went into effect in April 2005. It allowed for a retrial of some major
crimes (such as murder, manslaughter, kidnapping, rape, armed robbery, and serious drug offences) regardless of
when they occurred. A suspect can be tried again for the same crime under the new system if there is "new,
compelling, reliable, and substantial evidence" that was not previously accessible.

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Japan

According to Article 39 of the Japanese Constitution, no one should be prosecuted for an act that was declared
lawful at the time of commission or for an act for which he was acquitted, and thus the accused should not be
prosecuted. However, acquittal here refers to the Supreme Court's acquittal; lower court decisions can still be
appealed to higher courts without breaking the doctrine.

Conclusion

Every legal system is built on two pillars. The first is legal certainty, while the second is equity. When an offender
is prosecuted and punished, he must understand that by paying the penalty, he has expunged his guilt and is no
longer subject to punishment. If he is acquitted, he must be confident that he will not be charged again in the
future. A sentence, whether absolvitor or condemnatory, serves as a total bar to any subsequent trial for the same
offence, as well as any other crime involving the same species facti, whether committed on public or private land.

We have also proved our alternative hypothesis which talks about double jeopardy being an important safeguard
for the criminal justice system without which the concept of ‘audi altrem partem’ would not be applicable and
would provide a fair trial for all.

There is a provision for double jeopardy in every legal system since no one should be punished twice for the same
crime. The doctrine of double jeopardy gives the accused the chance to avoid being punished twice for the same
crime, and he or she can plead it out. Circumstantial conditions vary depending on the case. As a result, the rule
of double jeopardy cannot be applied uniformly and is thus interpreted differently in different situations.

When interpreting the clause, judges must ensure that the innocent are not penalised. Since man can remember,
the notion of double jeopardy has been a feature of the legal system, and it is an honest attempt to safeguard the
innocent. As a result, it can be regarded as a positive and just ideology based on equality, justice, and morality.

By making it a Fundamental Right in her Constitution, India has established a safeguard against double jeopardy.
However, in comparison to other countries, the Constitution's protection against double jeopardy is limited, as it
only applies when the accused is convicted in a previous prosecution, not when he is acquitted. Whereas the
Double jeopardy rule in England is a bit harsh because on basis of review the person can be tried again if there is
strong evidence against that person in particular.

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References

• Blackstone, Commentaries, 335, (1889), excerpt by Lawrence Newman, “Double Jeopardy and the
Problem of Successive Prosecutions”, 34 S. Cal.R [1960], p.252.
• Venkataraman v Union of India, (1954) SCR1150
• Kolla Veera Raghav Rao v. Gorantla Venkateswara Rao, AIR (2011) SC 641
• Leo Roy V. Superintendent District Jail (1958 AIR 119)
• Assistant Collector of Customs V. L.R Malwani (1999) (110) e.l.t. 317 (sc)
• Kalwati V. State of Himachal Pradesh (AIR 1953 SC 131)
• Institute of Chartered Accountants of India v. Vimal Kumar Surana (2010)
• Rao Shiv Bahadur Singh v. State of V.P. (1953)
• Maqbool Hussain v. State of Bombay, A.I.R. (1953) S.C. 325
• Roshan Lal & ors v. State of Punjab (1964)
• Jay A. Sigler, A History of Double Jeopardy, The American Journal of Legal History, Vol. 7, No. 4 (Oct.,
1963), p. 283
• Karmanya dev sharma, Jiffy & Ravi Prakash, guarantee against double jeopardy Academike (2015),
https://www.lawctopus.com/academike/double-jeopardy/#_edn4 (last visited Mar 14, 2022).
• Bhambri, S. (2021, August 6). A CONCEPT OF DOUBLE JEOPARDY. Sbhambriadvocates;
www.sbhambriadvocates.com. https://www.sbhambriadvocates.com/post/a-concept-of-double-jeopardy

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