Constitution: Double Jeopardy
Constitution: Double Jeopardy
Constitution: Double Jeopardy
In India, protection against double jeopardy is a Fundamental Right guaranteed under Article 20
of the Constitution of India. An article 20(2) state that “No person shall be prosecuted and
punished for the same offence more than once” contains the rule against double jeopardy.
The Indian Constitution guarantees to the people certain basic human rights and freedoms, such
as inter alia, equal protection of laws, freedom of speech and expression, freedom of worship
and religion, freedom of assembly and association, freedom to move freely and to reside and
settle anywhere in India, freedom to follow any occupation, trade or business, freedom of person,
freedom, against double jeopardy and against ex post facto laws. Untouchability, the age old
scourge afflicting the Hindu Society, has been formally abolished.
A person can claim Fundamental Rights against the state imposing some permissible restrictions
in the interests of social control. The grounds for imposing these restrictions on Fundamental
Rights are expressly mentioned in the Constitution itself and, therefore, these rights can be
abridged only to the extent laid down.
The Constitution- makers decided to incorporate Fundamental Rights in the Constitution because
of several reasons, such as, consciousness of massive minority problem in India; memories of the
protracted struggle against the despotic British rule; acknowledgement of the Gandhian ideals;
the climate of international opinion and the American experience.
These Fundamental Rights have been conceived in a liberal spirit and seek to draw a reasonable
balance between individual freedom and social control. These rights constitute a counterpart of
the American Bill of Rights and though there are quite a few signs of resemblance between the
two, the Fundamental Rights in India cover a much wider ground and are expressed in much
greater detail than is the case in the U.S.A. The Bill of Rights in U.S.A. has served as bulwark
against abuse of authority by the organs of government and has made a tremendous contribution
to the promotion of a regime of freedom and liberty. The Fundamental Rights also play a similar
role and promote rule of law in India.
The roots of the doctrine against double jeopardy are to be found in the well- established maxim
of the English Common law, Nemo debet bis vexari, meaning that a man must not be put twice in
peril for the same offence. When a person has been convicted for an offence by a competent
court, the conviction serves as a bar to any further criminal proceeding against him for the same
offence. The idea is that no one ought to be punished twice for one and the same offence. If a
person is indicated again for the same offence in a court, ha can take the plea of autrefois acquit
or autrefois convict.
The principle was inexistence in India even prior to the commencement of the Constitution,1 but
the same has now been given the status of constitutional, rather than a mere statutory, guarantee.
Double Jeopardy is recognized in different countries like U.S., U.K., Canada, Germany, France,
Japan etc. Further, double jeopardy is discussed in accordance with Constitutions of different
countries.
1 S. 26 of General Clauses Act and S. 403(1) of the Cr.PC, 1898; S. 300, Cr.PC 1973.
RULE OF Autrefois Acquit:
It is a fundamental principle of the common law that a person cannot be put in jeopardy twice
for the same offence. Almost all common law countries incorporate this protection in their laws.
While some countries have found it necessary to be included in their constitutions, others have
incorporated it in their statutes. All agree that the protection has its origin in the English common
law of the eighteenth century. Though its origin is thus common, it is found that its reception and
implementation have been different. Both in America and India, the protection against double
jeopardy is accepted as a constitutional right and incorporated in the constitutions.
Under Article 20(2) which states “No person shall be prosecuted and punished for the same
offence more than once” contains the rule against double jeopardy. The corresponding provision
in the American Constitution is embodied in that part of the Fifth Amendment2 which declares
that no person shall be subject for the same offence to be put twice in jeopardy of life or limb.
The principle has been recognized in the existing law in India and is enacted in Section 26 of the
General Clauses Act, 1897 states,” 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.” and
Section 300 of Criminal Procedure Code, 1973, 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.
(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,
(4) A person acquitted 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 (10 of 1897) or of Section 188 of this Code.
In the American system the constitutional bar applies to the second prosecution irrespective of
the result of the first prosecution. The constitutional safeguard can be pleaded to the second
prosecution irrespective of whether the accused was acquitted or convicted in the first
The plea of double jeopardy is to be distinguished from the rule of issue in a criminal trial.10 The
rule of issue estoppel is that where an issue of fact has been decided by a competent court on a
former occasion and a finding has been reached in favour of an accused, such a finding would
constitute an estoppel or res judicata against the prosecution, not as a bar to the trail and
conviction of the accused for a different or distinct offence but as tried subsequently even at a
different trail. The rule is not the same as the plea of double jeopardy, because, firstly, the rule
does not introduce any variation in the Code of Criminal Procedure, either in investigation,
enquiry or trial and secondly, it does not prevent the trail of any offence as does the rule of
double jeopardy, but only precludes evidence being led to prove a fact in issue as regards which,
evidence has already been led and a specific finding recorded at an earlier trial before a
competent court. The rule, thus relates only to the admissibility. The rule depends upon well-
known doctrines which controls the re- litigation of issues which are settled by prior litigation.
In Pritam Singh v. State of Punjab11, the accused made the statement leading to the recovery of
firearm which he was alleged to have used against the victims. He was prosecuted for possession
of the firearm and was acquitted, but the evidence of possession of the firearm was used in trail
of murder charge against the same accused. This was held to be not permissible. The reasoning is
that the acquittal in respect of the possession of firearm affected the admissibility of the same
evidence in connection with the murder case, because the firearm could not at the same time be
possessed as well as not possessed by the accused.12
7 Thomas Dana v. State of Punjab, AIR 1959 SC 375; Maqbool Hussain v. State of Bombay, AIR 1953 SC 325
8 Ibid.
10 Piara Singh v. State of Punjab,(1969) 1 SCC 379, 383: AIR 1969 SC 961 and State of A.P. v. Kokkiliagada Meerayya, (1969) 1 SCC
161,166: AIR 1970 SC 771
BACKGROUND:-
While numerous countries maintain variations of double jeopardy, the American approach
remains one of the more potent provisions. The American interpretation, however, has not
always provided criminal defendants a formidable defense. For nearly two hundred years, the
The dual sovereignty doctrine was extended recently to embrace dual prosecution by the federal
government and tribal courts on Indian reservations in United States v. Lara.21 Thus, although
the Fifth Amendment protects against multiple prosecutions by the same sovereign—or
subdivisions thereof—double jeopardy poses no bar to separate prosecutions by independent
sovereigns. Two of the more renowned instances of separate prosecutions by independent
sovereigns include the Rodney King case defendants’ subsequent federal trials following state
acquittals and Terry Nichols’s subsequent state capital trial following a federal trial resulting in a
life sentence. Finally, double jeopardy does not affect the ability of a private individual to sue
civilly for conduct that may be prohibited by criminal and civil law. The paradigm example
continues to be the O. J. Simpson case, in which Simpson was subsequently sued civilly for
wrongful death following his acquittal for murder.
Multiple Prosecutions:-
In its most literal sense, the Double Jeopardy Clause protects against multiple prosecutions after
an individual has been acquitted. Double jeopardy ensures that the prosecution will put forth its
strongest case first and allow a jury, rightly or wrongly, to assess the defendant’s guilt. In the
United States, jeopardy attaches once the jury is sworn or once the prosecution introduces
evidence in a trial before the court. Once jeopardy attaches, courts and prosecutors are prevented
Finally, although the ability of the government to appeal criminal convictions is extremely
limited, a defendant’s successful appeal will not bar his or her reprosecution on double jeopardy
grounds as voluntary appeal operates as a waiver to reprosecution. The double jeopardy
limitation of the same offense does not preclude multiple counts emanating from a single
criminal episode and does not prohibit multiple prosecutions for separate crimes against separate
individuals, even when there was but a single criminal act, such as two murders during a single
robbery. Rather, the ‘‘same offense’’ test as set forth in Blockburger v. United States,22 to
‘‘determine whether there are two offenses or only one is whether each provision requires proof
of an additional fact which the other does not.’’ A good example of the Blockburger test in
application is the Supreme Court’s decision in Brown v. Ohio,23 where the Court determined that
an attempted second prosecution for stealing an automobile was barred by double jeopardy when
the defendant had previously been convicted of operating the same vehicle without the owner’s
consent. Finding that them is demeanor count of joyriding was a lesser-included offense of auto
theft, the Court held that the defendant had been twice put in jeopardy for the same offense and
reversed the subsequent prosecution. As a reminder that double jeopardy operates as a imitation
on courts and prosecutors, the Brown Court struck down the state court’s interpretation of double
jeopardy, stating that the ‘‘Double Jeopardy Clause is not such a fragile guarantee that
prosecutors can avoid its limitations by the simple expedient of dividing a single crime into a
series of temporal or spatial units.’’ Likewise, the Supreme Court found in Ashe v. Swenson,24
that the doctrine of collateral estoppel is embodied by the Double Jeopardy Clause. In Ashe, the
defendant had been accused of participating in the robbery of six men at a poker game.
Prosecutors decided to try the defendant for only one of the robberies first. At this trial, the main
issue was identity and the jury returned a verdict of not guilty due to insufficient evidence.
During the subsequent trial, defendant raised the defense of double jeopardy when the state
presented a much stronger argument regarding identification. The Court had no difficulty finding
this second attempted trial to be barred by double jeopardy through the application of collateral
estoppel (the issue of identity having been resolved in the first trial), remarking that ‘‘for
whatever else that constitutional guarantee may embrace, it surely protects a man who has been
acquitted from having to ‘run the gauntlet’ a second time.’’
UNITED KINGDOM
The doctrines of autrefois acquit and autrefois convict persisted as part of the common law from
the time of the Norman Conquest; they were regarded as essential elements of protection of the
The prosecution has a right of appeal against acquittal in summary cases if the decision
appears to be wrong in law or in excess of jurisdiction.
A retrial is permissible if the interests of justice so require, following appeal against
conviction by a defendant.
A "tainted acquittal", where there has been an offence of interference with, or intimidation of,
a juror or witness, can be challenged in the High Court.
CANADA
In Constitution of Canada, double jeopardy is recognized under Title 5- Legal Rights, Section
11(h)-“ Any person charged with the offence has the right- if finally acquitted of the offence, not
to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or
punished for it again.”25
JAPAN
In the Constitution of Japan, ”Diet”, double jeopardy is recognized in Chapter III, Article 39-
as “No person shall be held criminally liable for an act which was lawful at the time it was
committed, or of which he had been acquitted, nor shall he be placed in double jeopardy.”26
GERMANY
In Germany, also principle of double jeopardy is stated in Article 103(3) “No one may be
punished for the same act more than once in pursuance of general legislation.”27
26 Ibid. p.254
27 Ibid. P.232
1. S.A. Venkataraman v. Union of India28
Facts of case in brief: An enquiry had been made against the appellant under the Public
Servants (Inquiries) Act, 1850. Appellant was given an opportunity under Article 311(2) to show
cause. Soon thereafter the police submitted a charge-sheet against him for having offences under
Section 161 and 165, Penal Code and Section 5(2) of the Prevention of Corruption Act, 1947.
The validity of subsequent prosecution was challenged by the appellant on the ground that it
contravened the constitutional guarantee embodied in Article 20(2).
Judgment:- Court rejected his plea on the ground that the proceeding taken against him before
the Commissioner under the Enquiries Act did not amount to prosecution because in an enquiry
under the Act there was neither any question of investigating an offence in the sense of an act or
omission punishable by law which made that act or omission an offence.
2. State of Rajasthan v. Hat Singh29
Judgment:- Court held that different offences and punishments for two offences have different
ingredients and the same set of facts may give rise to both without violating Article 20(2)
31 AIR2009SC1938
On 5th September, 2003, a complaint was filed by the NCB before the learned Special Judge,
Mumbai, against the appellants under Sections 29,20,23,27A,24 read with Section 8,12 of the
Narcotic Drugs and Psychotropic Substances Act, 1985, in connection with the abovementioned
incident. The appellant, who had been extradited to the USA, was tried before the District Court
at Michigan, USA, in Case No. 04 CR 80571-1. On pleading guilty of the charge of conspiracy
to possess with intention to distribute controlled substances, which is an offence under Section
846 of Title 21, United States Code (USC) Controlled Substances Act, the appellant was
sentenced to imprisonment on 27th June, 2006, for a total term of 54 months. After serving out
the aforesaid sentence, the appellant was deported to India on 5th April, 2007, and on his arrival
at New Delhi, he was arrested by officers of the NCB and was taken to Mumbai and on 10th
April, 2007, he was produced before the learned Chief Metropolitan Magistrate and was
remanded to judicial custody.
On 25th April, 2007, on the appellant's application that the proceedings against the appellant in
India would amount to double jeopardy, the learned Special Judge, Mumbai, rejected the
appellant's contention upon holding that the charges which had been dropped against the
appellant in the proceedings in the USA had not been dealt with while imposing sentence against
him in the District Court of Michigan, USA. The Special Judge extended the judicial custody of
the appellant and subsequently rejected his prayer for bail.
The appellant then approached the Bombay High Court, praying for quashing of the proceedings
initiated by the NCB and also praying for interim bail on the ground of double jeopardy. A
complaint was filed by the NCB against the appellant in the Court of Special Judge, Mumbai,
against which the appellant filed Criminal Writ Petition, praying for quashing of the said
complaint.
Judgment:- The Bombay High Court dismissed the writ petition upon holding that the
ingredients of the offences with which the appellant had been charged in India were totally
different from the offences with which he had been charged and punished in the USA. The High
Court also held that the acquisition and possession of Hashish in India and importation of the
same into India from Nepal and the export of the contraband out of India, as well as sale thereof
in the USA, could not be said to be the subject matter of an offence under Section 846 read with
Section 841 of Title 21 USC Controlled Substances Act, nor was the appellant subjected to
prosecution in respect of any of such offences in the USA. Consequently, conspiracy for all those
acts in India was not the subject matter of prosecution in the District Court, New York, USA.
Similarly, the Special Judge, Mumbai, was not competent to deal with the offence' under Section
846 read with Section 841 of Title 21 USC Controlled Substances Act, nor was the District Court
in New York competent to take cognizance of any of the offences alleged to have been
committed under the NDPS Act, 1985. The High Court came to the conclusion that merely
because the same set of facts gives rise to different offences in India under the NDPS Act and in
the USA under its drug laws, the different circumstances and the law applicable would not debar
the Special Judge, Mumbai, from dealing with matters which attracted the provisions of the local
laws and hence the application of the principle of double jeopardy was not available in the facts
of the present case and Supreme Court relied on the judgment and dismissed the appeal.
CONCLUSION:-
In every legal system there is provision for “double jeopardy” as no person should be punished
twice for the same offence .Doctrine of double jeopardy is a right given to the accused to save
him from being punished twice for the same offence and he/she can take plea of it. In different,
cases it is interpreted in different manner due to the circumstances of the cases. Our Constitution
also provides such right guaranteed under Fundamental Rights to safeguard the interest of the
accused person. While interpreting the provision judges always keeps a watch that innocent does
not gets punished. Finally, it can be concluded that it is a positive right provided to an individual.