B.

GUARANTEE AGAINST DOUBLE JEOPARDY

MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed
M P JAINJustice Chelameswar and Justice Dama Seshadri Naidu

MP Jain Indian Constitutional Law with Constitutional Documents, 7th ed > MP Jain Indian
Constitutional Law with Constitutional Documents, 7th ed > PART V POLITICAL AND CIVIL
RIGHTS > CHAPTER XXV Fundamental Rights (Topic 6)

PART V POLITICAL AND CIVIL RIGHTS

CHAPTER XXV Fundamental Rights (Topic 6)

B. GUARANTEE AGAINST DOUBLE JEOPARDY

(a) PRINCIPLE OF DOUBLE JEOPARDY

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 proceedings 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 indicted again for the same offence in a court, he can plead, as a complete defence, his
formal acquittal or conviction, or, as it is technically expressed, he can take the plea of autrefois
acquitorautrefoisconvict.

The Fifth Amendment of the US Constitution provides inter alia:

Nor shall any person be subject for the same offence to be put twice in jeopardy of life or limb.

In the USA, the protection is not only against a second punishment but even against the peril in
which a person is placed by the second trial for the same offence.
(b) SCOPE OF ARTICLE 20 (2)

Article 20 (2) which runs as “No person shall be prosecuted and punished for the same offence
more than once” contains the rule against double jeopardy.

The principle was in existence in India even prior to the commencement of the Constitution,35.
but the same has now been given the status of a constitutional, rather than a mere statutory,
guarantee.

The ambit of Article 20 (2) is, however, narrower than the English or the American rule against
double jeopardy. The Indian provision enunciates only the principle of
autrefois convict but not that of autrefois acquit. In Britain and the USA,
both these rules operate and a second trial is barred even when the accused has been
acquitted at the first trial for that offence. In India, on the other hand, the rule of autrefois acquit
is not incorporated in Article 20 (2). Article 20 (2) may be invoked only when there has been
prosecution and punishment in the first instance.
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B. GUARANTEE AGAINST DOUBLE JEOPARDY

Both prosecution and punishment should co-exist for Article 20 (2) to be operative. A
prosecution without punishment would not bring the case within Article 20
(2). If a person has been prosecuted for an offence but acquitted, then he can be prosecuted for
the same offence again and punished.

The distinct language of Article 20 (2) appears to have been overlooked by the Supreme Court
in Mukhtiar Ahmed Ansari v State (NCT of Delhi)36.. In connection with an incident of
kidnapping and extortion, the accused was booked under the Arms Act as
well as under TADA. He was also charged in a kidnapping case along with two others. He was
acquitted in the kidnapping case. The Supreme Court set aside the sentence passed against the
accused under TADA as also under the Arms Act on the ground that “once
the accused was acquitted in kidnapping case the doctrine of autrefois
acquit gets attracted”.37.

A person accused of committing a 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 apply as there was no
punishment for the offence at the earlier prosecution; and an appeal against an acquittal was in
substance a continuation of the prosecution.38. When a person is neither convicted nor acquitted of the
charges against him in the first trial, a retrial in such a case would not amount to double
jeopardy.39.

A person was prosecuted and punished under section 161, IPC. On appeal, the High Court
quashed the trial holding it void ab initio as no sanction for the same had
been obtained under the law. Article 20 (2) would not bar a second trial for the same offence,
as the accused had not been prosecuted and punished for that offence.40. When a trial has for
some reason become abortive either because of some inherent defect or illegality affecting the
validity of the trial itself, a second trial is not barred by Article 20 (2).41.

Where there are two distinct offences made up of different ingredients, embargo under Article
20 (2) or section 26 of General Clauses Act, 1897 has no application, though the offences
may have some overlapping features. Offences under section 302 of IPC, section
3 (2) and section 3 (3) of POTA are all distinct offences and a person can be charged, tried,
convicted and punished for each of them severally.42.

When at the instance of the accused himself the authorities took steps to dissolve the court and
constitute a fresh court to protect the interest of the accused, the question of double
jeopardy does not arise because the accused was not either convicted or acquitted of the
charges against him in the first trial.43.

Enhancement of punishment by the revising authority does not amount to a second

punishment.44. Preventive detention is not “prosecution and punishment” and, therefore, it does
not bar prosecution of the person concerned.45.

It has been held that the doctrine of double jeopardy in Article 20 (2) is circumscribed only
to prosecution culminating in conviction. It was further held that, a fortioriArticle 20 (2)
palpably postulates that prescribed successive punishment must be of criminal character. Thus,
departmental or disciplinary proceedings, even if punitive and even attracting principle of
autrefois convict in amplitude are not outlawed by Article 20 (2). The acquittal
of an employee by a criminal court would not automatically and conclusively impact
departmental proceedings.46.

Further, Article 20 (2) can operate as a bar only when the second prosecution and punishment
is for the identical offence for which the person concerned has already been
prosecuted and punished earlier. The same offence means an offence whose ingredients are
the same. If the offences are distinct, there is no question of the rule as to double jeopardy
being applicable. If one and the same act of a person constitutes two different
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B. GUARANTEE AGAINST DOUBLE JEOPARDY

offences, then the punishment for one offence does not bar prosecution and punishment for the
other offence.47. In order to attract the provisions of Article 20 (2), ingredients of the offences in
the earlier case as well as in the latter case must be the same and not different. The test to
ascertain whether the two offences are the same is not the identity of allegations but the identity
of the ingredients of the offence.48.

The same set of facts, in some cases, can constitute offences under two different laws. An act
or omission can amount to and may constitute an offence under the Indian Penal Code and at
the same time may constitute an offence under any other law. As the
Supreme Court has observed in Murad Ali:49.

In order that the prohibition [under Art. 20 (2)] is attracted the same act must constitute an offence
under more than one Act. If there are two distinct and separate offences with different ingredients
under two different enactments, a double punishment is not barred.

The Supreme Court has explained the legal position as follows in Apte:50.

To operate as a bar the second prosecution and the consequential punishment thereunder, must be
for the ‘same offence’. The crucial requirement therefore for attracting the
Article is that the offences are the same, i.e., they should be identical. If,
however, the two offences are distinct, then notwithstanding that the allegations of facts in the two
complaints might be substantially similar, the benefit of the ban cannot be invoked. It is, therefore,
necessary to analyze and compare not the allegations in the two complaints but the
ingredients of the two offences and see whether their identity is made out.…

In Apte, a person was convicted under section 409, IPC, for criminal breach
of trust. His later prosecution on the same facts under section 105 of the Insurance Act would
not be barred under Article 20 (2) because the ingredients of the two offences were different.
The court emphasized that the crucial requirement for attracting Article 20 (2)
is that the offences are the same, i.e. they should be identical. If the two offences are distinct,
then, notwithstanding that the allegations of facts in the two complaints are substantially the
same; the benefit of the ban cannot be invoked. “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…”

In Leo Roy Frey,51. the question arose whether a crime and the offence of
conspiracy to commit the crime are different offences. The petitioner in the instant case was
found guilty of an offence under section 107 (8), The Sea Customs Act,
1878, and was punished accordingly. Thereafter, prosecution for criminal conspiracy under
section 120-B, Penal Code, was brought against him. The Supreme Court ruled
that the second prosecution was not barred since it was not for the same offence.

The court explained the position thus: The offence of a conspiracy to commit a crime is an
offence separate from the crime itself which is the object of the conspiracy, because the
conspiracy precedes the commission of the crime and is complete before the
crime is attempted or committed. Equally the crime attempted or completed does not require the
element of conspiracy as one of its ingredients. The two are therefore quite separate offences.
Accordingly, punishment for one offence does not bar punishment later for the other.

Similarly, the offence under section 161, IPC, is different from the offence of criminal misconduct
punishable under section 5 (2) of the Prevention of Corruption Act, though some of the
ingredients of the two offences may be common. Therefore, punishment for one does not bar
punishment for the other though both the offences may arise from the same facts.52.

In Agarwal,53. the accused was convicted under the Customs Act. He was later sought to be
prosecuted under the Gold (Control) Act. The Supreme Court ruled that the ingredients required
to be established under the Customs Act are different from the ones required
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B. GUARANTEE AGAINST DOUBLE JEOPARDY

to be established for an offence under the Gold (Control) Act and, therefore, Article 20 (2) does
not come into the picture. If the ingredients of both the offences are satisfied,
the same act of possession of gold would constitute offences under both the Acts. The petitioner
in the instant case was not being prosecuted for the same offence twice but for two distinct
offences constituted of different ingredients, and the bar of Article 20 (2) does not apply in such
a situation.

The appellant had been tried earlier under sections 399 and 402, IPC and section
3 of TADA for having a firearm in possession and preparing and assembling for committing a
dacoity. Later he was tried under TADA (Section 5) essentially for
unauthorised possession of a stengun. In the earlier case, the question of possession of the
stengun was considered but the prosecution evidence was not believed then. The Supreme
Court in Mohinder Singh,54. rejected the contention that the accused was being tried twice for
the same offence.

When a person was convicted in the USA under its drug laws and on the same set of facts tried
in India under the Narcotic Drugs and Psychotropic Substances Act, 1985, it was held the
application of the principle of double jeopardy was not available since the offences in the USA
and India were distinct and separate.55.

An employee of the Border Road Organisation was court-martialled and found to be guilty of
some of the charges framed against him and was sentenced to rigorous imprisonment for
one year. Thereafter, he was dismissed from service under the relevant Service Rules. The
Supreme Court ruled in UOI v Sunil Kumar Sarkar56. that it did not amount to double
jeopardy under Article 20 (2). The two proceedings operated in two different fields even
though the crime or the misconduct might arise out of the same act. The two proceedings did
not overlap—court-martial proceedings dealt with penal aspect of the misconduct while the
proceedings under the Service Rules dealt with the disciplinary aspect of the
misconduct.

Article 20 (2) does not apply to departmental proceedings. So an employee punished by a

reduction of pay because of rash and negligent driving can subsequently be dismissed from
service upon his conviction by a criminal court in respect of the same incident.57.

Subsequent trial, prosecution and punishment are not barred if the ingredients of the two
offences are distinct.58.

Then there is also the concept of a “continuing offence” which means that where an act or
commission constituting the offence is continued from day to day, a fresh
offence is committed every day and each offence can be punished separately.59.
(c) PROSECUTION

A limitation read into Article 20 (2) is that the former “prosecution” (which indicates that the
proceedings are of a criminal nature) must be before a court of law, or a judicial tribunal required
by law to decide matters in controversy judicially on evidence and on oath which it must be
authorised by law to administer, and not before a tribunal which entertains a departmental or
administrative enquiry, even though set up by a statute, but not required to proceed on legal
evidence given on oath.

The words “before a court of law or judicial tribunal”, though not found specifically in the Article,
have, nevertheless, been read therein. When a civil servant is dismissed from Government
service on the ground of misbehaviour after a departmental inquiry, his later prosecution on the
same charges which had been earlier inquired into and for which he was
punished by dismissal would not be barred by Article 20 (2). The earlier “inquiry” could not be
regarded as “prosecution” for a criminal offence and so Article 20 (2) would
not apply. Thus, a departmental inquiry does not bar a later prosecution and punishment in a
court.60.
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B. GUARANTEE AGAINST DOUBLE JEOPARDY

The court has explained the legal position under Article 20 (2) as follows: To invoke the
protection of Article 20 (2), there must have been both prosecution and punishment in respect
of the same offence. The words “prosecuted and punished” are to be taken
not distributively so as to mean “prosecuted” or punished. Both the factors must co-exist in order
that the operation of Article 20 (2) may be attracted. When a departmental
inquiry is held against a civil servant under the Public Servants (Inquiries) Act of 1850, he is
not “prosecuted” and “punished” for an offence as contemplated by Article
20 (2).

Explaining the nature of the inquiry commissioner appointed under the Inquiries Act, the
Supreme Court has observed in Venkataraman:61.

A commissioner appointed under this Act has no duty to investigate any offence which is punishable
under the Indian Penal Code or the Prevention of Corruption Act and he
has absolutely no jurisdiction to do so. The subject matter of investigation by him is the truth or
otherwise of the imputation of misbehavior made against a public servant and it is only as instances
of misbehaviour that the several articles of charge are investigated, upon which
disciplinary action might be taken by the Government if it so chooses.

The opinion expressed by the commissioner after the inquiry is not binding. “This is a mere
expression of opinion and it lacks both finality and authoritativeness which are the
essential tests of a judicial pronouncement.”

In the instant case, V, a Government servant, was dismissed after an inquiry under the Public
Servants (Inquiries) Act. Thereafter he was tried under sections 161 and
165, Penal Code, and section 5 (2) of the Prevention of Corruption Act. His subsequent trial
was held not barred by Article 20 (2). The earlier inquiry did not amount to
prosecution because in an inquiry under the Act there was neither any question of investigating
an offence in the sense of an act or omission punishable by any law which made that act or
omission an offence.

Maqbool Hussain,62. is the leading case on this point. A person arrived at

an Indian airport from abroad. He was found in possession of gold which was against the law at
the time. Action was taken against him by the customs authorities and the gold was confiscated.
Later he was prosecuted before a criminal court under the Foreign Exchange
Regulation Act. The question was whether the plea of “autrefois acquit”
could be raised under Article 20 (2). The Supreme Court came to the conclusion that the
proceedings before the customs authorities did not constitute “prosecution”
of the appellant, and the penalty imposed on him did not constitute a “punishment” by a
judicial tribunal. In these circumstances, the trial of the petitioner before the criminal court was
not barred. The court observed:

It is clear that in order that the protection of Article 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 authorised by law to administer and not before a tribunal which entertains a departmental or
an administrative enquiry even though set up by a statute but not required to
proceed on legal evidence given on oath. The every wording of Article 20 and the words used
therein: “convicted”, “commission of the act charged as an offence,” “be
subjected to a penalty” “commission of the offence”, “prosecuted and
punished”, “accused of any offence”, 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 regulates the procedure.
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The court ruled that the sea customs authorities are not a judicial tribunal and adjudging by it of
confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do
not constitute a judgment or order of a court or judicial tribunal necessary for the purpose of
supporting the plea of double jeopardy. Therefore, when the customs authorities confiscated
the gold, the proceedings before them neither constituted a prosecution of the
appellant nor did the offer of confiscation constitute a punishment inflicted by a court or judicial
tribunal on the appellant. The appellant could not be said by virtue of these proceedings to have
been “prosecuted and punished” for the same offence with which he was charged later before
the criminal court under section 23, Foreign Exchange Regulation Act.

Similarly, in the case mentioned below,63. the Supreme Court has ruled that the adjudicatory
authorities functioning under the Foreign Exchange Regulation Act do not function as criminal
courts. The proceedings before them are “adjudicatory” in nature and character
and are not “criminal proceedings.” These authorities “adjudicate” following rules of natural
justice but they are not judges of criminal courts trying an “accused” for
commission of an offence. Therefore, any penalty imposed by them does not bar a prosecution
before a criminal court and the bar under Article 20 (2) would not be
attracted in such a case.

On the same logic, conviction by a court on a criminal charge would not bar the holding of a
departmental inquiry later for the same charge or on the same facts.64. Similarly, punishment for
a jail offence by the jail Superintendent would not bar prosecution and punishment in a court
for the same offence, for the jail Superintendent acts as an administrative authority to maintain
discipline and inflicts summary punishment for breach of discipline and proceedings before him
are not judicial in nature.

Levy of penalty for default in payment of sales-tax is not “prosecution” so as to bar a subsequent
prosecution in a criminal court for the offence.65. For breach of permit rules under the Influx from
Pakistan Control Act, punishment through a court, and his removal from India through a
direction of the Government of India do not constitute “double jeopardy”, as the latter does not
involve second prosecution.66.

Confiscation of goods under the Sea Customs Act does not bar a prosecution of the person
concerned for a criminal offence, for the customs authorities not being judicial authorities,
action taken by them (confiscation of gold) was neither prosecution nor punishment before a
court or a judicial tribunal for purposes of Article 20 (2)67.

In Thomas Dana v State of Punjab,68. the facts were as follows: D, the appellant, sought to
take out some foreign exchange from India which was confiscated by the customs authorities
after following due procedure under the Sea Customs Act. Later he was prosecuted before a
criminal court under the provisions of the Foreign Exchange Regulation
Act and the Sea Customs Act and he was duly convicted for the offence. The High Court
dismissed his appeal. He then filed a writ petition in the Supreme Court against his
conviction on the ground that Article 20 (2) barred his prosecution. The Supreme Court
dismissed the petition. In imposing confiscation and penalty under the Sea Customs Act and
FERA, the concerned authority acts judicially but it is not a court. The
proceedings before the officer do not amount to “prosecution” within the meaning of Article 20
(2). Therefore, the later prosecution before a criminal court would not be hit by Article 20 (2).

It is thus established that action taken by a quasi-judicial body does not bar a later prosecution
before a court. Thus, immunity against a second prosecution has become confined to a
situation when the first proceeding has been before a court of law. The same will be the
position when after “prosecution and punishment” for an offence, further action is taken by a
quasi-judicial body.69. This excludes the vast system of inquiries and punishments by a number
of quasi-judicial bodies which operate at present in the country.70. This is because the word
“prosecution” in Article 20 (2) has been interpreted restrictively. The
scope of Article 20 (2) has thus been very much narrowed down by judicial interpretation.71.
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Article 20 (2) is limited to indictment before a criminal court. Therefore, Article 20 (2) does not
bar proceedings before a civil court for disobedience of an injunction along
with criminal proceedings, as the former are not in the nature of criminal proceedings.72.

35. See, section 26 of the General Clauses Act and section 403 (1) of the CrPC, 1898;
section 300, CrPC 1973.
36. Mukhtiar Ahmed Ansari v State (NCT of Delhi),(2005) 5 SCC
258 : AIR 2005 SC 2804.
37. Ibid at page 269.
38. Kalawati v State of HP, AIR 1953 SC 131 : 1953 SCR 546.
39. OP Dahiya v UOI,(2003) 1 SCC 122 : AIR 2003 SC
4464.
40. Baij Nath v State of WB, AIR 1957 SC 494.
41. Mohd Safi v State of WB, AIR 1966 SC 69 : (1965) 3 SCR
467. State of Karnataka v C Nagarajaswamy,(2005) 8 SCC
370 : AIR 2005 SC 4308.
42. State v Navjot Sandhu, (NCT of Delhi),(2005) 11 SCC 600
: AIR 2005 SC 3820.
43. OP Dahiya v UOI,(2003) 1 SCC 122, at p 123.
44. DA Kelshikar v State of Bombay, AIR 1960 Bom
225.
45. Ghulam Ahmad v State of J&K, AIR 1954 J&K 59.
46. UOI v Purushottam,(2015) 3 SCC 779 : AIR 2015 SC
961.
47. Bhagwan Swarup v State of Maharashtra, AIR 1965 SC
682 : (1964) 2 SCR 378; Harjinder Singh v State of
Punjab,AIR 1985 SC 404 : (1985) 1 SCC 422; see alsoShiv
Parshad Pandey v CBI,(2003) 11 SCC 508 : AIR 2003 SC
1974, for what does not amount to second trial.
48. Sangeetaben Mahendrabhai Patel v State of Gujarat, AIR 2012 SC 2844 :
2012 (4) Scale 549 : (2012) 7 SCC 621.
49. State of Bihar v Murad Ali Khan, AIR 1989 SC 1 : (1988) 4
SCC 655; State of Rajasthan v Hat Singh, (2003) 2 SCC
152 : AIR 2003 SC 791.
50. State of Bombay v SL Apte,AIR 1961 SC 578 : (1961) 3
SCR 107.
Also See, Manipur Administration v Thockchom Bira Singh,AIR 1965 SC 87
: (1964) 7 SCR 123.
51. Leo Roy Frey v Suptd, District Jail,AIR 1958 SC 119 : 1958
SCR 822.
52. Kunji Lal v State of MP, AIR 1955 SC 280 : (1955) 1 SCR
872; Gandhi v State of Mysore, AIR 1960 Mys. 111;
Chintamanrao v Digram, AIR 1960 MP 149.
Also, State of MP v Veereshwar, AIR 1957 SC 592 : 1957 SCR 868.
53. VK Agarwal v Vasantraj,AIR 1988 SC 1106 : (1988) 3 SCC
467.
54. Mohinder Singh v State of Punjab,(1998) 7 SCC 390. See
also State (NCT of Delhi) v Navjot Sandhu,(2005) 11 SCC
600 at p 693.
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55. Jitendra Panchal v Narcotics Control Bureau,(2009) 3 SCC

57.
56. UOI v Sunil Kumar Sarkar, AIR 2001 SC 1092 : (2001) 3
SCC 414.
57. State of Haryana v Balwant Singh,(2003) 3 SCC 362 : AIR
2003 SC 1253.
58. State (NCT of Delhi) v Sanjay, (2014) 9 SCC 772 : AIR
2015 SC 75.
59. Re M Daveed, AIR 1959 AP 137; Mohd Ali v Sri
Ram Swarup, AIR 1965 All 161.
60. SA Venkataraman v UOI, AIR 1954 SC 375 : 1954 SCR
1150.
Also, DA Kelshikar v State of Bombay,AIR 1960 Bom 225.
61. Supra, fn 55.
62. Maqbool Hussain v State of Bombay, AIR 1953 SC 325 :
1953 SCR 730.
63. Director of Enforcement v MCTM Corp Pri Ltd,AIR 1996 SC
1100 : (1996) 2 SCC 471.
64. Motising Chhagansing Vaghela v SD Mehta, AIR 1966 Guj
233.
65. M Seetharamaswami v Commercial Tax Officer,AIR 1960 AP
451.
66. Ebrahim Vazir v State of Bombay, AIR 1954 SC 229 : 1954
SCR 933.
67. Maqbool Hussain v State of Bombay, supra; Assit Customs
Collector v LR Melwani, AIR 1970 SC 962 : (1969) 2 SCR
488.
68. Thomas Dana v State of Punjab,AIR 1959 SC 375 : 1959
Supp (1) SCR 274.
For the text of the case, and comments thereon, See, MP Jain, Cases & Materials on Indian
Adm Law, III, 2393-2398.
69. Joginder Singh v Bar Council of India, AIR 1975 Del
192.
70. Raja Narayan Lal Bansi Lal v Maneck Phiroz, AIR 1961 SC
29 : (1961) 1 SCR 417.
71. MP Jain, Bhagwati J and Indian Constitutional Law, 2 JILI, 31 (1959-60).
72. Bachcha Lal v Lalji, AIR 1976 All 393.

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