DOUBLE JEOPARDY

“no person shall be prosecuted and punished for the same offence more than
once.”

 Introduction

The doctrine of double jeopardy finds place in almost all civilized systems of
law. Natural justice requires that the one act must result in one consequence
only. If an act is a legal wrong, the law must provide punishment only once.
This is what justice demands and public policy supports. The principle of
double jeopardy is to protect a defendant “against a second prosecution for the
same offense after conviction”. This doctrine is necessary to provide a
protection to an accused from the conduct of sovereign power which imperils
him. In fact it is designed to protect an individual from being subjected to the
hazards of trial and possible conviction more than once for an offence.
Moreover, Double Jeopardy plays an important role for the protection of
integrity of the criminal justice system including precious fundamental rights of
the accused persons.

 Meaning of the term Double Jeopardy

Double Jeopardy is a legal term which means that a person cannot be punished
for the same offence more than once. It’s based on the maxim: NEMO DEBET
BIS VEXARI which means Man must not be put twice in peril for the same
offence. The term ‘jeopardy’ is defined as “hazard, danger or peril”. With
respect to criminal law, jeopardy means “the risk of conviction and
punishment”. Thus, Double jeopardy‟ simply refers to the act of putting a
person through a second trial of an offence for which he or she has already been
prosecuted or convicted.
 History and Background

The doctrine of Double Jeopardy has usually been dealt with in England and
United States. The doctrine of Double Jeopardy has its origin in English
Common Law maximum NEMO DEBET BIS VEXARI PRO UNA ET
EDEM CAUSA. Hence it is usual to say that the Britishers brought it to India.
But, it’s not only rooted in common law principle of English law but also
recognized and applied in ancient Indian law, as it is evident from spiritual
literature. In ancient times, Prangnyaya (res judicata) has been referred to as one
of the possible defenses to an action. Once a decision has been given, it
becomes final and cannot be reopened by leading fresh evidence.

In India, Double Jeopardy had been first introduced in the year 1793 by Section
16 of the Bengal Regulation, III of 1793 which prohibited Zila and City Courts
from entertaining any cause, which from any decree or record produced before
the court appeared to have heard and determined by any judge or any
superintendent of a court having competent jurisdiction.

Moreover, the doctrine of double jeopardy found recognition in form of

statutory protection for the very first time under the Code of Criminal
Procedure, 1861 which was later amended and codified. But the protection
against double jeopardy provided by Code of Criminal Procedure, 1861 was
always incorporated. This doctrine also mention in the Indian Evidence Act,
1872 as well. The law of the same is contained in Section 40 of the Act. In
addition to this, The Indian Penal Code, 1860 is another significant legislation
that provides protection against multiple punishments under Section 71.
Although this provision was not there in the original Code but the same was
inserted after amendment in the year 1861.

After independence, fundamental rights were guaranteed under the Part III of
the Constitution. The doctrine of double jeopardy found its place under Part III
 in Article 14(2) of the Draft Constitution in the following words No person shall
be punished for the same offence more than once. After considering the
proposed amendments, the Constituent Assembly adopted the Article 14(2) of
the Draft Constitution, which now finds its final shape in Article 20(2) of the
Constitution in the following words: No person shall be prosecuted and
punished for the same offence more than once.

 Provisions under Indian Law

Under the Indian Law, Double Jeopardy has been incorporated in Article 20(2)
of the Constitution of India, Section 300 of the Criminal Procedure Code,
Section 26 of the General Clauses Act, 1897 and Section 71 of Indian Penal
Code.

 Article 20(2) of the Constitution of India: No person shall be prosecuted or

punished for the same offence more than once.
It is to be noted that this provision does not provide for a continuing offence.

 Section 26 of the General Clauses Act: states that as to offences

punishable under two or more enactments, where an act or omission
constitutes an offence under two or more enactments, then the offender shall
be liable to be prosecuted or punished under either or any of those
enactments, but shall not be liable to be punished twice for the same offence.

 Section 300(1) of Criminal Procedure Code, 1973: provides that “a

person who has once been tried by a court of competent jurisdiction for an
offence and convicted or acquitted of offence shall, while such conviction or
acquittal remains in force, not to be liable to be tried again for the same
offence…”

 Section 71 of Indian Penal Code: provides that, “where anything which

is an offence is made up of parts, any of which parts is itself an offence, the
 offender shall not be punished of more than one of such his offences, unless
it be so expressly provided”.

 Cases related to Double Jeopardy

Some of the landmark judgments delivered by the Supreme Court of our

country for the protection of Double Jeopardy as enshrined in the Constitution
of India are given below:

In Venkataraman v. Union of Indiai, 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).

In the case of Kalawati v. State of Himachal Pradeshii, a person accused of

committing murder was tried and acquitted. The State preferred an appeal
against the acquittal. The accused could not plead Article 20(2) against the State
preferring an appeal against the acquittal. Article 20(2) would not applicable as
there was no punishment for the offence at the earlier prosecution.

However, In the case of Mohinder Singh V. State of Punjabiii, The appellant

was tried for Section 399 and 402 of Indian Penal Code + Section 3 of TADA
because he had a firearm in his possession. Later he was tried under Section 5 of
TADA because he had a stengun in his possession. He challenged this. The
court held that it is not double jeopardy because the offences ARE NOT
SAME.
 In addition to this, In the case of Mohammad Ali v. Sri Ram Swaroopiv, the
court held that in cases of Continuing offense, each day is counted as a fresh
offense and each can be punished separately so double jeopardy doctrine is not
permissible in continuing offences.

 Conclusion

The “underlying idea” of double jeopardy includes the desire to protect an

individual from repeat prosecutions that would subject him to live in a
continuing state of anxiety and insecurity. It is revealed that a partial protection
against double jeopardy is a Fundamental Right guaranteed under Article 20 (2)
of the Constitution of India. There is a need of active participation of Judges;
they have to keep in mind of those offences which constitute the same offence
& those too which do not.
i
AIR 1954 SC 375
ii
AIR 1953 SC 131
iii
(1998) 7 SCC 390, 1999
iv
AIR 1965 All 161